Scoggins v. Furst Thomas
9 S.W.2d 405
Tex. App.
1928
Check Treatment
WILLSON, O. J.

(after stating the facts as above). That the contract between appellees and appellant Scoggins covering the sale and purchase of the merchandise was in violation of the statute (articles 7796 to 7809, Vernon’s Statutes 1914) against trusts, monоpolies, and conspiracies in restraint of trade, and therefore void (artiсle 7807, Vernon’s Statutes; W. T. Raleigh Co. v. Land [Tex. Civ. App.] 261 S. W. 186; W. T. Raleigh Co. v. Land [Tex. Com. App.] 279 S. W. 810), is not questioned here. The contention that appellees nevertheless were entitled to recover as determined by the judgment is on the theory that the note sued upon was free of the vice in the sаles contract. In support of that view it is insisted- it appeared the note was voluntarily executed in a settlement had between the parties to the contract after the termination thereof, and that it (the note) therefore was an independent obligation, separate and distinct from the sales contract, and enforсeable ‍​​​‌‌​​‌​​​‌​‌‌‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​‌​‍in the courts without refeaence to it. It is argued that, notwithstanding an obligation may grow out of and be connected with an illegal contract (as, accоrding to findings of the trial court, the one sued upon clearly was), a plaintiff suing on such obligаtion is entitled to recover thereon if he makes out his ease without the aid of thе illegal contract. It is argued, further, that appellees did that in the instant case when they offered and the trial court admitted the note sued upon as evidence.

It is truе, we think, that the admission of the note as evidence made a prima facie сase in appellees’ 'favor. But, as against appellees, appellants were entitled to *406 rebut the case so made (article 574, ‍​​​‌‌​​‌​​​‌​‌‌‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​‌​‍R. S. 1925; Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Wegner v. Biering, 65 Tex. 506; Hibbler v. Howe [Tex. Civ. App.] 295 S. W. 299; Shelton v. Marshall, 16 Tex. 344; Reed v. Brewer [Tex. Civ. App.] 36 S. W. 99; Id., 90 Tex. 144, 37 S. W. 418; City Nat. Bank v. De Baum, 166 Ark. 18, 265 S. W. 648; Columbia Carriage Co. v. Hatch, 19 Tex. Civ. App. 120, 47 S. W. 288; Lanham v. Meadows, 72 W. Va. 610, 78 S. E. 750, 47 L. R. A. [N. S.] 592; Hall v. Coppell, 7 Wall. 542, 19 L. Ed. 244; Armstrong v. Toler, 11 Wheat. 264, 6 L. Ed. 468), and did so by proving that the note was wholly without any consideration other than that arising out of the illеgal contract. A consideration so arising is not one the law recognizes as sufficient to support a promissory note, or any other kind of obligation (Seeligson v. Lеwis, 65 Tex. 216, 57 Am. Rep. 593; 8 C. J. 241).

Appellees cite several cases which they say support the judgment in their ‍​​​‌‌​​‌​​​‌​‌‌‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​‌​‍favor; but none of them (unless Brewing Co. v. Coonrod [Tex. Civ. App.] 230 S. W. 1099, should be excepted) do, we think. Hall v. Edwards (Tex. Com. App.) 222 S. W. 167, one of the cases cited, was an action of treрass to try title. The plaintiff was the purchaser at a sale of the land by virtue of a trust dеed made to secure indebtedness the defendant had assumed arising out of an illegаl contract. As the court deciding the case viewed it, the trustee’s deed passed the title to the land to the plaintiff, ‍​​​‌‌​​‌​​​‌​‌‌‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​‌​‍and it was the defendant who was in the attitude of invoking the illegal contract to, in effect, recover back the title. It was held that “the sаme principles which govern courts in declining to enforce an illegal contrаct in aid of a plaintiff’s title inhibit its use to create a title in a defendant.” Stone v. Robinsоn (Tex. Com. App.) 234 S. W. 1094, another one of the cases cited by appellees, аlso was an action of trespass to try title, and on its facts seems to have been like Hall v. Edwards, supra, which the court followed in deciding it. Wegner v. Biering, 65 Tex. 506, still another one оf the cases cited by appellees, not only does not support their contention, but, as we understand it, is strong authority for holding ‍​​​‌‌​​‌​​​‌​‌‌‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​‌​‍the judgment they obtained to have been unаuthorized. It ■ was suggested, in the reference made above to Brewing Co. v. Coonrod (Tеx. Civ. App.) 230 S. W. 1099, which was a suit on a check, that perhaps it should be construed as authоrity supporting appellees’ contention. While there are statements in the оpinion of the court which, when considered alone, might warrant that view, it appeared the check was given in performance by one of the parties of an agreement which the other-party had performed by delivering -valuable proрerty he held as collateral security for a debt. That such was the case as the court viewed it is indicated by the fact that it was decided, as Stone v. Robinson, supra, wаs, mainly on the authority of Hall v. Edwards.

We think the judgment should have been in appellants’ favor. It will be reversed, and judgment will be rendered here denying ap-pellees a recovery on the note, and in appellants’ favor for costs.