Ricketts v. Harvey

• Decision Date: 15 April 1886
• Docket Number: 12,368
• Parties: Ricketts v. Harvey et al
• Court: Indiana Supreme Court

6 N.E. 325

106 Ind. 564

Ricketts v. Harvey et al

No. 12,368

Supreme Court of Indiana

April 15, 1886

Petition for a Rehearing Overruled June 5, 1886.

From the Madison Circuit Court.

Judgment affirmed.

C. N Pollard, H. D. Thompson and T. B. Orr, for appellant.

J. W Sansberry and M. A. Chipman, for appellees.

OPINION

Elliott, J.

The appellant assails one of the instructions given by the trial court, but we feel bound, upon an examination of the record, to sustain the contention of the appellees, that as no exception was reserved no question is presented for our consideration.

The record, however, is not free from confusion, and fearing that we may possibly be in error in holding that there was no exception, we have examined the question sought to be presented, and the result of our examination is, that, conceding that the instruction is erroneous, and conceding, also, that there was an exception, there can be no reversal. The record shows that no harm was done the appellant even if the instruction was erroneous. An answer returned by the jury to an interrogatory propounded to them shows that the promissory notes, upon which the appellant's cause of action is founded, were given for an illegal consideration. The interrogatory and answer to which we refer read thus: "Was not the consideration of the notes in suit that Hinton and Ricketts would use their influence to procure the acquittal of Miles Harvey, who was then being prosecuted in the Howard Circuit Court upon a charge of having obtained goods of said Ricketts and Hinton under false pretences? Answer: Yes."

An agreement to stifle or hinder a public prosecution for a felony is illegal, and a promissory note given in consideration of such an agreement can not be enforced. Ricketts v. Harvey, 78 Ind. 152; Crowder v. Reed, 80 Ind. 1.

Many decisions affirm that where it appears from the answers to interrogatories that the appellant could not have been harmed by an instruction, the judgment will not be reversed although the instruction was wrong. Worley v. Moore, 97 Ind. 15; Stockton v. Stockton, 73 Ind. 510; Ferguson v. Hosier, 58 Ind. 438.

If the promissory notes which constituted the cause of action upon which the plaintiff must recover, or not recover at all, were founded on an illegal consideration, then, no matter what the court may have instructed upon the subject of an executed consideration, the verdict is right. The defence which the answer to the interrogatory reveals renders a recovery by the plaintiff legally impossible. It cuts up his cause of action "root and branch." There may be cases where an instruction brings about, or tends to bring about, a wrong answer to an interrogatory, in which the judgment should be reversed, but this is not such a case.

The first instruction asked by the appellant was properly refused. If the consideration of a promissory note is in part illegal and in part legal, and is indivisible, there can be no recovery upon the note. There are cases where...