Wolff v. Perkins

• Decision Date: 28 November 1925
• Citation: 254 Mass. 10,149 N.E. 691
• Parties: WOLFF v. PERKINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 10

149 N.E. 691

WOLFF

v.PERKINS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 28, 1925.

Report from Superior Court, Middlesex County; R. W. Irwin, Judge.

Action of contract by Abraham Wolff against Alexander Perkins and another, to recover on a note against defendants as comakers. Verdict was directed for plaintiff, and defendants except, and case was reported. Exceptions sustained. Case to stand for new trial.Qua, Howard & Rogers and B. Silverblatt, all of Lowell, for plaintiff.

Farley & Tierney and E. J. Tierney, all of Lowell, for defendants.

SANDERSON, J.

This is an action by the payee of a negotiable promissory note against his son and the defendant Perkins, as comakers. At the close of the evidence the trial judge directed a verdict for the plaintiff, subject to the exception of the defendant Perkins. The only defenses that need to be considered are (1) that the note was given for an illegal consideration, and (2) that it was given without consideration and for the accommodation of the plaintiff.

The defendant Wolff, who is the plaintiff's son, was arrested in New Hampshire in the summer of 1919, for larceny of automobile tires. The case was disposed of by payments made by the plaintiff to the people from whom the tires were stolen, to counsel in New Hampshire, and to the court for costs. The plaintiff was reimbursed for a part of these payments and received a note for the balance signed by the defendants. This note was renewed from time to time and reduced by payments until the balance due was represented by the note upon which this action is brought.

If the testimony of the plaintiff is taken as true, he paid out this money for his son, in New Hampshire, at the request of the defendant Perkins and upon his promise to reimburse the plaintiff after the case was settled; and the note was given in compliance with this agreement. The jury could have found upon the testimony of the defendant Wolff that Perkins participated with him in the thefts; that the plaintiff knew this; that Perkins signed the note to carry out an agreement on his part to furnish the money to settle the criminal case, and on the part of the plaintiff and his son to cover up the connection of Perkins with the crime and to protect him from prosecution.

[2][3][4][5][6] A note given under such circumstances is based upon an illegal consideration. It is immaterial whether the crime referred to be a felony or a misdemeanor. Commonwealth v. Pease, 16 Mass. 91;Jones v. Rice, 18 Pick. 440,29 Am. Dec. 612;Clark v. Pomeroy, 12 Allen, 557;Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124. The result is the same if only a part of the consideration is illegal. Atwood v. Fisk, supra; Gorham v. Keyes, 137 Mass. 583. Such agreements are against public policy and cannot be enforced. Graves v. Johnson, 156 Mass. 211, 30 N. E. 818,15 L. R. A. 834, 32 Am. St. Rep. 446;Traders' National Bank v. Steere, 165 Mass. 389, 392, 43 N. E. 187;Downey v. Gove Co., 201 Mass. 251, 87 N. E. 597,131 Am. St. Rep. 398. The facts in the case to be decided distinguish it from Graves v. Johnson, 179 Mass. 53, 60 N. E. 383,88 Am. St. Rep. 355. Perkins, who denied that he had any part in the crime, is not thereby estopped to rely on the defence of illegality which became an issue in the case, because of the testimony of his co-defendant, who was called by the plaintiff. If the plaintiff desired to object to the pleading of inconsistent defences he should have raised the question by demurrer. Jewett v. Locke, 6 Gray, 233;Lyons v. Ward, 124 Mass. 364. Because of the conflict in the evidence the judge could not have ruled that the defence of illegal consideration had not been established.

[7][8][9] Upon the testimony of Perkins, including that which was offered and excluded subject to his exception, the jury could have found that, at the request of the defendant Wolff, he asked the plaintiff to help his son out of the trouble, but when told by the plaintiff that he would help upon condition that Perkins would sign a note with the plaintiff's son, he refused to agree to this; that when Perkins signed the note he owed the plaintiff no money, was under no legal obligation to him, and became a party to the note solely because of ...