75 W. Va. 747 | W. Va. | 1915
Defendants, Angel, Toney, Kaufman and Strudwick, seek reversal of a .judgment against them on a note dated October 30, 1903, made by one Roberts, payable sixty days after date, to one E. T. Sprinkle, Sheriff of McDowell County, for nine hundred and twenty-one dollars "and five cents, negotiable and payable at the McDowell County Bank, Welch, West Virginia, and endorsed by them and also by their co-defendants, Tipton, Roberts, Ballard and Botsford.
Besides the general issue and the plea of the statute of limitations of ten years, plaintiffs in error interposed as defenses, by special plea number 2, “that if they signed the note sued upon as endorsers thereon, the said note was given and their endorsements obtained for an illegal consideration, to-wit: to suppress a criminal prosecution for a felony begun and put On foot against the maker of said note, P. G. Roberts and this they are ready to verify”; and by special plea number 3, “that they were merely endorsers upon the note sued upon, and that said note was not presented for payment according to the time 'thereof,- and protested for non-payment
On the trial the plea of the statute of 'limitations was not sustained by the proof, and no point of error on said plea, is made or relied on here.
On the plea of want' of notice of protest and consequential release as endorsers on the note, we think, as the court below evidently concluded, that this defense also failed for want of proof. The evidence was that the note and certificate of protest had been lost, and evidence was admitted showing conclusively its contents, and that the mote was duly presented for payment, payment refused, and protest and notice thereof mailed to each of said endorsers at their regular post office addresses. The only evidence to the contrary was the personal recollection of two or three of these defendants, after nine years, that they had never received such notices. But there is no evidence that any of them ever denied liability on the note on that account until suit brought, and moreover, some of them, at least, negotiated for payment of the note after its maturity, and one of them seems to have paid over to another his part or portion of the debt that the whole might be settled and paid. The note having been so regularly protested and notices mailed to the endorsers it is wholly immaterial whether the endorsers received their notices or not. Section 8, chapter 99, serial section 3446, Code 1906; Insurance Co. v. Wilson, 29 W. Va. 528. Defendants’ instruction number 4, propounding a contrary proposition, was therefore rightfully rejected.
The real and only question of merit presented by plea, and by an instruction given by the court in lieu of instruction number 1, requested by plaintiff, and defendants’ instructions numbered 2 and 3, rejected, is whether, as alleged in the plea, and as assumed by defendants’ two instructions rejected, said note and the endorsements thereon were given or procured in consideration of the suppression of a criminal prosecution for a felony begun and put on foot against said Roberts, as alleged in said plea, or to stop such intended prosecution, as assumed in said instructions.
The evidence is that the note was made by Roberts, who had been secretary of said board of education, to cover the
. It is well settled law that, though criminal proceedings have been begun and be pending against the wrongdoer for the crime, one whose money or property has been embezzled, or fraudulently procured, may contract with sueh wrongdoer for re-payment or satisfaction of the loss, and take security therefor, without invalidating sueh contract, unless there be included therein and as part consideration therefor some promise or agreement, express or implied, that sueh prosecution shall be suppressed, stifled or stayed. 9 Gyc. 506, and notes, citing eases; Johnston v. Allen (Fla.) 1 Am. St. Rep. 180 ;Portner v. Kirschner, 47 Am. St. Rep. 925; 1 Page on Cont., sec. 418; Tecumseh National Bank v. Chamberlain Banking House, (Neb.) 57 L. R. A. 811; Fosdick v. Vanarsdale, (Mich.) 41 N. W. 931.
On the other hand it is equally well settled, that if such an unlawful promise or agreement constitutes any part of the-consideration for the promise or agreement of the wrongdoer or his sureties, the contract is wholly void and will not be enforced by the courts. All such contracts are deemed contrary to good morals and public policy, and as to which the courts will turn a deaf ear, when their enforcement is sought therein. And this rule of law as between the parties thereto is applicable to the making and enforcement of negotiable instruments. 1 Daniel on Neg. Inst., (6th ed.) section 196a and notes; 3 R. 0. L. p. 957; Norton on Bills and Notes, 268, 277, 278; Henderson v. Palmer, 22 Am. Rep. 119; Friend v. Miller, 39 Am. St. Rep. 340; 1 Chit. Com. L. 4; 4 Am. & Eng. Ency. Law, 191.
The evidence is clear and convincing that as between Roberts, the offender, and maker of the note, and the board of education, and the sheriff, the nominal payee in the note, not
"We have examined the instructions relied on by defendants and rejected by the court. We think the court’s instruction, given, covered the whole case presented by pleadings and proofs, and that there was no reversible error in rejecting defendants’ instructions.
,Nor do we find any error based on the theory that plaintiff had no right of action on the note. The note was admittedly made to cover money fraudulently drawn out of the treasury of the board of education, and while credit might possibly have been denied the sheriff on settlement, evidently such was not the fact, for the board of education counselled with the prosecuting attorney, and consented to the taking of the note, dealt with it as their own, and brought suit upon it. The sheriff took no part in the transaction except to receive the note as treasurer. The point is overruled.
We are of opinion to affirm the judgment.
Affirmed.