114 Ill. App. 488 | Ill. App. Ct. | 1904
delivered the opinion of the court.
In support of the demurrer counsel argue that the agreement sued on is champertous and void and cite Thompson v. Reynolds, 73 Ill. 11; Coleman v. Billings, 89 Ill. 183; Torrence v. Shedd, 112 Ill. 466; Phillips v. Park Commissioners, 119 Ill. 626; Geer v. Frank, 179 Ill. 570, and other cases decided by the Supreme Court of this state. The law is—and so these cases hold—that any contract by which an attorney agrees to prosecute a suit on a contingent fee and bear the¡ expense and costs of litigation is champertous and therefore void. Geer v. Frank, supra. In Thompson v. Reynolds, supra, the Supreme Court adopt Blackstone’s definition of champerty, an essential element of which is that “the champerfcer is to carry on the party’s suit at his own expense.” In other words, the law will not allow a person to advance for another the costs and expense of litigation in consideration of deriving some benefit from, the outcome thereof. The agreement before us is not of that character. Under it appellees were to make no advances or payments of any kind. The “expenses of the case,” after having been paid by appellant, were to be deducted out of appellees’ share of the judgment to be recovered, which was only another way of fixing the compensation to be paid them for their services.
It is not denied that under N. C. St. Ry. Co. v. Ackley, 171 Ill. 100, the clause of the agreement whereby appellant was “not to settle or compromise without the consent of” appellees is .unlawful and of no effect, and counsel therefore contend that the whole contract is vitiated thereby. This result would undoubtedly follow if the contract is an entire one and the illegal part is not severable from the rest. 7 Am. & Engl. Enc. of Law, 2nd ed., 98. But upon the authority of Corcoran v. Coal Co., 138 Ill. 391; Bank v. Frazer, 86 Ill. 133; Wolsey v. Neeley, 62 Ill. App. 141; Whitbeck v. Estate of Ramsay, 74 Ill. App. 524, and Lumber Co. v. Coal Co., 56 Ill. App. 248, we are of opinion that the obnoxious provision is independent of the others, and may be disregarded without affecting their validity. Appellees do not rely for a recovery on the void clause.- A contract containing two or more independent promises, based on a lawful consideration, one of which is void, may be enforced as to the valid promise.
The judgment appealed from is affirmed.
Affirmed.
Mr. Justice Baker took no part.