Sims v. Alabama Brewing Co.

• Decision Date: 19 December 1901
• Citation: 31 So. 35,132 Ala. 311
• Parties: SIMS v. ALABAMA BREWING CO.
• Court: Alabama Supreme Court

31 So. 35

132 Ala. 311

SIMS v. ALABAMA BREWING CO.

Supreme Court of Alabama

December 19, 1901

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by the Alabama Brewing Company against J. F. Sims. Judgment for plaintiff, and defendant appeals. Affirmed.

John H Miller, for appellant.

M. M Ullman, for appellee.

TYSON J.

If it be conceded that the promise of defendant to pay to plaintiff the $71.40 per month for the use of the license issued to Stinson & Co. was void on account of illegality, it by no means follows that his promise to pay $71.40 per month to plaintiff for money advanced to purchase a new license to be issued to him was void. It is this latter promise, based upon a consideration of a loan of money by plaintiff to defendant to purchase the license necessary to the carrying on of the business in which he was engaged, that this suit was brought to enforce. Where the contract is entire,--incapable of divisibility,--the rule undoubtedly is that a promise to do an act which is illegal, or a promise to do a legal act based upon an illegal consideration, is void. Clark, Cont. 471. To state the proposition in another form: "Where a contract which is entire contains a stipulation or agreement which is illegal, and which therefore is not severable from the balance of the contract, such illegal stipulation or agreement cannot be ignored, and the other provisions of the contract enforced. The illegal stipulation or agreement in such case penetrates and corrupts the whole contract, and vitiates it as an entirety." On the other hand "where a contract is in part illegal, and the illegal part is severable from the balance, the effect of such illegality is not to render the whole contract illegal, but the courts will recognize and enforce the legal part; and this is true though the illegality arises out of the violation of a statutory prohibition." So, too "where the contract contains several independent agreements on the part of one of the parties, and the consideration moving from the other party is apportioned to each agreement, the contract as to such agreements will be held severable; and, in case one is illegal as against public policy, the others may still be enforced." 15 Am. & Eng Enc. Law (2d Ed.) pp. 988, 990, 991, and notes. In 2 Pars. Cont. (8th Ed.) p. 633, it is said: "The question whether a contract is entire or separable is often of great importance. Any...