Ritchie v. Sweet

32 Tex. 333 | Tex. | 1869

Morrill, C. J.

Suit by the payee of a note against the maker. Answer of the defendant that he owes nothing. Amended petition states that in 1862 the plaintiff surrendered the note to defendant, and receiyedthe amount called for in Confederate money—that this Avas no payment, because: First—it AA'as received through duress ; second—it was a worthless, spurious, void, illegal, unconstitutional, treasonable and rebellious currency.

The judge charged the jury : First—that a voluntary reception of the Confederate money, in full payment of the note by the payee Avould be good payment. Second—that if the plaintiff received the Confederate note through duress, it was no payment; duress Avas defined to be a fear of the military authorities, alleged in the petition as the duress.

The jury found for the defendant upon the second charge given.

Plaintiff appeals, and as there is no pretence but that the jury were fully authorized to find for the defendant upon the testimony, the legality of the first charge is regarded by the plaintiff as erroneous.

That Confederate money Avas, in the language of plaintiff, illegal, unconstitutional, treasonable and rebellious, may be assumed as correct. It has been repeatedly decided by this court that an executory contract, the performance of Aidiich, or the consideration of which, Avas Confederate money, aatouM not be considered legal, and AArliene\'er any party has called upon this court for the enforcement of a contract, which, upon its face or by testimony, is made to appear Avas based upon Confederate money as a consideration, or to be executed and M-filled by the payment of it, he has universally received no favor, and has been taxed with all the costs of court. As the courts of other States have agreed with the decisions of this court herein, we have no doubt of the correctness of our opinions, and see no cause to alter our decisions herein. The reason why the court will not enforce an illegal contract is, that they will not he the handmaids to what is subversive of law—that courts are courts of law, and not courts of or for illegality. And, for this very reason, courts will not lend their aid to rescind an illegal executed contract.

It is admitted that the executory contract made by the parties was legal, but it is insisted by one party that because this legal executory contract was abolished, and an illegal executed contract was substituted therefor, that both parties were guilty of an illegal act, and, therefore, the courts should lend their aid to rescue him from his own illegal acts, voluntarily made. This is virtually calling upon the court to make a contract for the parties different from the one they made themselves. When the maker of the note, in consideration of six thousand dollars received from the payee, promised to repay this sum at a specified time, with twelve per cent, per annum interest, a contract was made, executed by the payee and executory on the part of the maker of the note. It was in the power of the payee of the note to insist upon the execution of this contract, and the courts would lend'their aid in enforcing its performance. But it was also in the power of the parties to abandon that contract, by the substitution of a new executory or executed contract in lieu thereof; and if this was done voluntarily, freely, without compulsion, fraud, or any of those incidents or other attendant circumstances that authorize a court to interpose its power, the parties are estopped by their own acts. In the case before the court, Ritchie was authorized to receive the money called for by the note, and it "was in his power to make a gift of the note either to the maker or any other person, or exchange it with either the maker or any other person, for any other commodity that might he agreed on by the parties. The allegation in tlie petition that “ the payment of the note in Confederate treasury notes was with spmious, void, illegal, unconstitutional, treasonable and rebellious currency, and, therefore, such pretended judgment was worthless, fraudulent and void; and now petitioner brings back and tenders to the defendants the full amount of such Treasury notes, and interest thereon, and brings them into court and prays that said note be delivered back to her,” etc., is simply stating that plaintiff did not act with either patriotism, wisdom, or in compliance with the law, and calls upon the court to relieve the plaintiff of his own rebellious, foolish and illegal acts, voluntarily made. The counsel for appellant and plaintiff makes a very excellent argument to substantiate the decision made by this court in Smith v. Smith, Linder v. Barbee, McGeliee v. Goodman, and Donley v. Tin-dell, all based upon the maxim ex dolo malo non oritur actio, but he does not seem to realize that, in complying with his request, we should virtually overrule those decisions. Plaintiff admits that if “the whole transaction rested upon the voluntary exchange of gold for Confederate notes, both parties being particeps criminis, Ritchie could not recover back his gold.”

The learned counsel states the whole case in a nutshell. The note of Sweet, which Ritchie held, called for six thousand dollars in gold, and stood in the place of so much gold—by the aid of the courts was convertible into gold. This nóte, or what it represented, was voluntarily exchanged by Ritchie for Confederate notes. The transaction was complete in itself. It was an executed contract, and needed no confirmation, and admitting that the contract was liable to the epithets applied to it by the counsel, it was still the voluntary contract of the

parties, and “ ex dolo malo non oritur actio?

The plaintiff’s argument assumes that the transaction between the parties, whereby Ritchie received the Confederate currency in exchange of the note, was illegal, and therefore a nullity, and the parties are to be regarded in their attitude of debtor and creditor, as if this transaction had never existed. Upon this he bases his argument. As we have endeavored to show, such is not the position that the plaintiff has assumed, unless he was acting under duress. This brings us to the second charge of the court, and was in fact the only question that could arise by the pleadings. The testimony was submitted to the jury, whose special province it was to say whether Bitchie was acting freely or by duress or fear. Their verdict negatived duress or fear, and leaves the parties entirely free to make the contract. They made the contract and simultaneously executed it. If, as the plaintiff alleges, it was “illegal, rebellious, unconstitutional and treasonable,” he must be governed by the law maxim nemo allegans suum turgpitudinem audiendus.

The judgment is affirmed.

Affirmed.