78 N.C. 328 | N.C. | 1878
This is an action for a breach of covenant. The defendants demur to the complaint, and the facts are these: On 17 February, 1874, an indictment was pending in the Superior Court of Guilford County against the plaintiff Lindsay, for erecting and maintaining a public nuisance by constructing a dam across a certain creek and ponding back the water thereof, which thereby became stagnant, fetid, and unwholesome, to the common nuisance of the citizens. That on said 17 February the covenant sued on was entered into, whereby the defendants covenanted, under the penalty sued for, to cut, maintain, and keep *220 in repair a certain ditch through the lands of the plaintiff; and that the plaintiff covenanted that when the work was done he would pay the defendants $50; and it was further covenanted as follows: "And it is further agreed by all the parties hereto, in consideration of the premises, that the indictment now pending in the Superior Court of Guilford County, against the said Alexander H. Lindsay, found at February Term, 1873, shall be discontinued and not proceed, and the prosecution thereof stopped without cost to the said Lindsay." . . . "And it is further agreed and understood by all the parties hereto, that this agreement is to be of no binding force on any of said parties whose names are signed hereto until and unless the indictment hereinbefore spoken of shall be discontinued without cost to the said Lindsay." And this covenant is signed by the plaintiff and defendants.
Assuming this covenant to have been broken by the defendants, do these facts constitute a cause of action?
The general doctrine was admitted by the plaintiff's counsel, (330) that no executory contract the consideration of which is contra bonos mores, or against the public policy or the laws of the State, can be enforced in a court of justice. It was further admitted that when the consideration of a contract is the compounding a felony, or the suppressing a prosecution of an offense strictly public in its character, such a contract cannot be enforced. But it was contended that this doctrine applied only to felonies, or at most to public misdemeanors, and that it had no application to offenses, though indictable, yet private in their nature, as affecting an individual or a community, as in this case. In our State it has been decided directly otherwise. Vanover v. Thompson,
So in civil cases, all contracts prohibiting parties from bringing an action and all agreements purporting to oust the courts of their jurisdiction; all agreements to pay money to stifle or suppress evidence or to give evidence in favor of one side only, or not to appear as a witness in a civil suit; all contracts, bonds, indemnities, and undertakings tending to induce sheriffs, clerks, jailers, and other public officers to violate or neglect their duty or made to protect them from the consequences of their misconduct, are absolutely null and void as contracts obstructing or interfering with the administration of public justice and as being contrary to the public policy of the law. I Add. on Contracts, sec. 258.
But the defendants' counsel contends with great ingenuity that there are two covenants in this sealed instrument, and that they are divisible, part being good and part bad; that the contract of the defendants is to do two things: first, to dismiss the indictment, which is illegal and void, but, second, to cut and keep up the ditch, which is legal and valid, and is the contract for the breach of which the action is brought. In regard to this proposition, the general rule is that if there are several considerations for separate and distinct contracts, and one is good and the other bad, the one may stand and be enforced, although the other fails, under the maxim, "Utile per inutile non vitiatur." But where (332) there is but one entire consideration for two several contracts, and one of these contracts is for the performance of an illegal act, the whole is void, as where one sum is to be paid for the doing of a legal and illegal act. Thus, where upon a contract for the hiring and service of a housekeeper at certain agreed wages it appears to have been a part of the contract that the housekeeper should cohabit with her master, the whole will be void and the wages irrecoverable by her. Rex v. Northingfield, 1 B. and Ad., 912; Willyams v. Bullmore, 32 Beav., 574; 1 Addison on Contracts, sec. 300. In Alexander v. Owen, 1 T. R., 227, the case was this: Upon a contract of sale of tobacco, it was agreed that counterfeit money should be taken in payment, and the tobacco having been delivered and the counterfeit money sent, the vendor refused to receive *222 it, and brought an action to recover the price of the tobacco, but the Court said that the sale could not be held to be good and the payment bad; if it was an illegal contract, it was equally bad for the whole, and the parties being in pari delicto, melior est conditio defendantis. Apply these principles to our case. There was but one indivisible consideration moving from the plaintiff, to wit, the sum of $50, and for that consideration the defendants covenant to do two things, the one legal and the other illegal. The consideration cannot be divided and enough of it assigned to support the contract to cut and maintain the ditch, but it, as it were, per my etper tout, enters into and supports both promises.
But there is another view equally fatal to this action. A part of the covenant is in these words: "And it is further agreed and understood by all the parties hereto, that this agreement is to be of no binding force on any of said parties whose names are signed hereto until and unless the indictment hereinbefore spoken of shall be discontinued without (333) cost to the said Lindsay." So the validity of the contract is expressly made to depend upon the performance of the very act which makes it invalid, to wit, the dismissal of the indictment. The covenants were not to be binding until the prosecution had been discontinued, and the contract to dismiss it was immoral and void. In such cases the law will leave the parties where it finds them. Kimbrough v.Lane, 11 Bush. 556; Setter v. Alvey,
PER CURIAM. Affirmed.
Cited: Commissioners v. March,
(334)