139 Ga. 260 | Ga. | 1913
The Exchange National Bank of Eitzgeralcl brought suit against J. A. J. Henderson, as maker, and Mitchell & Paulk, as indorsers, upon- a promissory note for $400. The note was payable to Mitchell & Paulk, who indorsed it to the plaintiff for value, before due. The note itself does not disclose the consideration, and only recites that it is given “for value received.” At the appearance term of the court, J. A. J. Henderson, the maker of the note, filed his plea averring: that the note was without consideration, and was obtained by fraud; that the note was given for a certain patent right; that the consideration had failed, because the payees of the note failed and refused to make over or to transfer to the defendant the interest in and to the patent right for which the note was given; and that they were unable to do so for the reason that they did not own or have, at the time of the execution of the note, any such patent right as they claimed to have. By an amendment to the original plea, J. A. J. Henderson set up the defense “that the note sued upon . . is void, and that the plaintiff can not recover thereon, for the reason that said note was given for an immoral and illegal consideration, to wit: to purchase political influence and votes in an election held in said county for the purpose of removing the court-house from Irwinville to Ocilla,” and that the payees fully understood that the consideration moving the maker of the note to enter into the contract for the purchase of an interest in the patent right was the agreement that he was to obtain the political influence of the payees to secure the removal of the court-house, and that the purchase of such interest was a mere blind to cover up such illegal and immoral contract, which was the sole consideration for the giving of the note sued on. The amendment to the plea further averred that the transaction was part of a general scheme whereby certain citizens of Ocilla, including the defendant, in consideration of the agreement on the part of Mitchell & Paulk to exert their political influence in favor of the removal of the court-house, gave notes in the aggregate sum of $2,500 for the purchase of a half interest in the patent rights. There was much testimony both for the defendant and plaintiff. Most of the witnesses for, the defendant testified that they would not have signed the notes except that they thought that they were signing them in order to get the influence and votes of Mitchell & Paulk for the removal of the county
In the case of Jones v. Dannenberg Co., 112 Ga. 426, 428 (37 S. E. 729, 52 L. R. A. 271), Mr. Justice Little said: “But the issue is still further narrowed to the question whether the averments of the plea set up a contract the consideration of which was both immoral and illegal. It will be noted that the statute requires these two conditions to exist jointly, to let in the defense. As was said in the opinion in the ease of Rhodes v. Beall, 73 Ga. 641, ‘the statute which makes such a contract illegal and void must also make the same a crime, or the act itself must be immoral and contra bonos. mores/ An examination of the plea discloses the fact that its averments do not designate the offense for which the husband of the plaintiff in error was arrested, nor can we gather from it the nature of the crime with which he was charged. .It may have been a felony, and, equally as well, it may have been a misdemeanor.55 And again, on p. 430: “So we'think that if we confine the averments made in the plea to their narrowest limits, and assume, because it was not otherwise pleaded, that the criminal offense for the settlement of which it is averred that the note and mortgage were given was a misdemeanor, then the consideration was an illegal one. Was it an immoral one in the sense of the
Judgment affirmed.