241 N.W. 68 | Minn. | 1932
In 1918 defendant was engaged in litigation wherein the stake was an interest in a northern Minnesota iron mine. Plaintiff advanced $705 to aid defendant in the prosecution of the case, in the language of the findings, *388 "pursuant to an agreement between the plaintiff and the defendant that if said defendant was successful in said litigation, the defendant would pay to plaintiff ten times the amount so advanced out of the proceeds of the recovery, while if the defendant was unsuccessful in said litigation * * * the defendant was to repay plaintiff nothing."
Defendant won. In 1920 he repaid to plaintiff $700 on account. No more was paid, but September 1, 1924, defendant gave plaintiff the promissory note for $3,200 here in suit in supposed settlement of the matter.
1. Decision went against plaintiff on the ground that the agreement under which plaintiff advanced his money in 1918 was champertous and so void as against public policy under the rule of Huber v. Johnson,
2. The original supposed contract being void, the attempted compromise of it, evidenced by the note in suit, is equally without effect. 6 R.C.L. 820. It imposed no enforceable obligation upon defendant, the promisor. 12 C.J. 334. If there be any objection to the conclusion that the note evidences a compromise of the original claim; if for any reason compromise is not the proper term wherewith to characterize the transaction, the note is yet so far an attempt to reëxpress an illegal obligation that the courts will not enforce it. "Repeating a void promise cannot give it validity." 6 R.C.L. 820. *389
3. Illegality was not pleaded in defense. Absence of consideration was set up. A principal argument for plaintiff is that "illegality of consideration was not before the court as a defense. * * * Illegal consideration is an affirmative defense." That point is thus disposed of by the decision below. In the answer want of consideration is pleaded, but there is no allegation of illegal consideration. In view of the fact that all the testimony on the question of the contract was brought out on the cross-examination of the plaintiff and without objection on his part, it is proper for the court to consider it. If an amendment to the answer is considered necessary, proper steps to secure such amendment might be taken.
With such a sensible handling of the matter by the learned trial judge no fault can be found. The facts were fully gone into. Plaintiff does not contend otherwise or that he was prevented from introducing all the proof available to throw light on the transaction or any part of it. His position that illegality must be pleaded is put upon Andrus v. Dyckman Hotel Co.
Order affirmed. *390