57 So. 75 | Ala. Ct. App. | 1911
To the complaint in this case counting on a bond or promissory note executed by the defendants (the appellees here) a special plea, numbered 3, was filed, which set up that the only consideration for the note sued on was the execution and delivery of a written contract purporting to confer on them certain patent rights, a copy of which was made an exhibit to the plea, which questioned the validity of that consideration on a ground stated. As the plea does not aver the existence of any fact collateral to the execution of the contract mentioned which was claimed to'affect its validity, and does not aver ás a fact that there was án absence of value in the consideration referred to, it is understood that the expressed conclusions of the pleader, that “the execution of that contract was in pursuance of a scheme and constituted a part of a scheme to defraud the public,” and' “constituted a part of an unlawful conspiracy to' induce- the public to purchase; one after' another, in an endless chain, similar
When the validity of a contract is attacked on the ground that it is violative of public policy, or that it is against the public interest to enforce it,- the court may well bear in mind that it is wholly outside of its function to be influenced by some considerations of policy which might properly have weight with the Legislature if it had occasion to deal with the question of permitting or prohibiting such a contract, or with a business man who was called on to pass upon the question of the wisdom or folly of entering into such an engagement; that the public policy with which it is concerned is that evidenced by the Constitution', the statutes, or definite principles of customary law which have been recognized and developed by the course of judicial'decisions; and
It is also to be remembered, in entering upon such an inquiry, that the burden is on the party who seeks to put a restraint upon the freedom of contracts to make it plainly and obviously clear that the contract is against public policy.—Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul R. Co., 70 Fed. 201, 17 C. C. A. 62, 30 L. R. A. 193.
We are of opinion that this burden has not been sustained by the party making the attack upon the contract brought into question in this case. The authorities principally, if not solely, relied on by the counsel for the appellees to- sustain the ruling on the demurrer to the plea above mentioned are the decisions of the courts of several states in reference to the notorious “Bohemian Oats” contracts, which were the means adopted for carrying out a swindling scheme which for a while seems to have had quite a successful career. The state of facts presented in one of the cases cited by the counsel—Schmueckle v. Waters, 125 Ind. 265, 25 N. E. 281—is typical of a group of cases which found their way into the courts as the result of the operations of that scheme. The transaction in which the note sued on in that case was given was simply this: Ten bushels of oats of the actual value of 30 to 40 cents a bushel were delivered by one party to the other upon an agreement that the party receiving the oats should execute his note for $100, the party furnishing the oats agreeing in turn to sell, before the maturity of the note, twenty bushels of the same kind of oats to be delivered
An analysis of the contract a copy of which is made an exhibit to the plea above referred to does not verify the conclusions in reference to its nature and necessary operation which are expressed by the pleader. That was a patent right contract by which the appellees acquired, subject to conditions stated, the privilege of
Enough has been said to indicate the grounds of the court’s conclusion that the demurrer to plea 3 should have been sustained.
Reversed and remanded.