Stout v. Ennis

28 Kan. 706 | Kan. | 1882

The opinion of the court was delivered by

Valentine, J.:

This action was brought by B. F. Stout against H. L. Ennis, to recover the sum of. $400, alleged to be due on the following instrument in writing, to wit:

“For- a valuable consideration, I hereby agree to pay to L. L. Orwig, for the benefit of B. F. Stout, $700, as follows; $100 one year from date.; $200 two years from date; $400 three years from date, and the last specified sum to bear interest at the rate of six per cent, per annum from date.

This agreement to be void at the death of either Stout or Ennis.— November 20, 1878. — Napoleon, Ohio.

H. L. Ennis.”

The sole question involved in this cáse is, whether this instrument in writing is valid, or not. Prima facie, it is legal and valid, and founded upon a sufficient consideration; and before we can hold that it is illegal or invalid or not founded upon a sufficient consideration, its illegality or invalidity or want of consideration must be made to affirmatively appear by something outside of the instrument itself, something extrinsic thereto. Is there anything in the case showing affirmatively that this instrument is not legal, or not valid, or not founded upon a sufficient consideration?

It appears from the petition in the case that the plaintiff and defendant entered into three separate contracts, at three different times. The first contract was, in substance, that if the plaintiff would support the defendant for nomination and election to the office of auditor of Henry county, Ohio, that 'the defendant would, if nominated and elected to such office,, employ the plaintiff as his deputy during the term of such office. Such contract was of course illegal and void, being in contravention of public policy.

The second contract was made after the election, and after the defendant had been both nominated and elected to such office. This contract was, in substance, that the defendant would employ the plaintiff as his deputy for the term of three years, and would pay to the plaintiff for his services one-half of the net salary and fees of the office. Now this contract is not necessarily illegal or void. It was not a sale or a “farming” of the office within the meaning of the decision in the case of Outon v. Rodes, 3 A. K. Marshall (Ky.), 432; 13 Am. Dec. 193. There is no pretense that the defendant was to abandon the office, or to give it up to the plaintiff. The contract was simply an agreement to employ the plaintiff as a deputy, and to give him a portion of the-fees and salary as compensation. The defendant would of course still retain the possession and control of the office, and the plaintiff would have nothing to do but to perform the ordinary duties of a deputy. There is nothing inhering in the contract itself that would render it illegal or void, and nothing has been shown outside of the contract that would necessarily render it illegal or void. The defendant however claims' that it is void for two reasons: First, that it is-founded upon the original and illegal contract made prior to the defendant’s nomination and.election; and second, that it is void on account of the sixth section of the statute for the prevention of frauds and perjuries. (Comp. Laws of 1879, p. 464, § 6.) Now it is not shown that the second contract was founded upon the first illegal contract, nor is it shown that it has any necessary connection therewith. It is not even shown that one was the inducement for the other. Each might have a separate and independent existence, and either might exist if the other had never been made.. We do not think that the first necessarily vitiates the second; and it is certainly not shown that the first has such a necessary connection with the second as to vitiate it. '

As to the question with reference to the statute of frauds and perjuries, we would say, that this contract was made in Ohio, and not in Kansas; and it is not shown what the provisions of the statutes regarding this subject are in Ohio. Of course, the statutes of Kansas cannot vitiate a contract made in Ohio. The contract may have been valid in Ohio, notwithstanding the statutes of Kansas. But supposing they have the same kind of statutes in Ohio for the government of this class of cases as we have in Kansas: then will the statutes in either state, or in both combined, render this second contract void? We think not. The statute referred to by the defendant does not purport to render-such contracts void. The statute, so far as it may be supposed to have any application to this case, provides that “no action shall be brought whereby to charge a party . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

It is claimed that this second contract is void because it was not to be performed within one year, and was in writing. Now there is nothing appearing in the case that shows that it was not in writing; and, as we have before stated, unless it be made to affirmatively appear that the contract sued on was illegal or void (it being prima fade valid), the contract sued on cannot be held to be void. Besides, when a contract is pleaded, it will usually be held to be valid, unless it affirmatively appears on the face of the contract, or by allegations in the pleading, to be invalid. But, as we have said before, the statute does not attempt.to make the second contract either illegal or void, even if it was not to be performed within one year and was not in writing. All that the statute .attempts with reference to this subject, is simply to enact that no action shall be brought on such a contract. The statute leaves the contract valid for all other purposes, unless it is void for some other reason than merely that it is not to be performed within one year and is not in writing. (McCampbell v. McCampbell, 5 Littell [Ky.], 92.) Such a contract is valid for all purposes except for the mere purpose of suing thereon. It is valid, for instance, as a consideration for some other contract; Now in the present case the plaintiff did not sue upon this second' contract. He sued upon the third contract, which was “in writing, and signed by the party to be charged therewith.” It will be seen that the statute of frauds and perjuries has really nothing to do with this ease.

The third contract, and the one sued upon in this case, appears to be valid in every respect, and, as we think, there is nothing outside of it and nothing in the record showing it to be invalid. It is true that the rescission of the second contract is the foundation, the basis, and the consideration for the third contract; but while it is possible that the second contract is void for the purpose of commencing an action upon it, yet it is valid for the purpose of making it a consideration for the third contracts The third contract, we think, is valid — or at least it is prima facie valid; and there being nothing in the case showing it to be void, it must be held to .be valid. The authorities will be found cited in the briefs of counsel.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.