Thedford v. McClintock, 47 Ala. 647

Thedford v. McClintock

47 Ala. 647 | Ala. | 1872

B. F. SAFFOLD, J.

There can be no doubt that the defense set up would defeat the plaintifTs suit if sustained by the proof. The questions asked by the plaintiff) which the court would not allow to be answered, tended to elicit answers that might disprove this defense. While it would be manifestly illegal to have sold a horse to any one with the intention and purpose on the part of the seller to have it used in the Confederate service, there was no impropriety in merely selling a horse to a Confederate lieutenant. A contract, to be valid, must be founded on a consideration which is not contra bonos mores, nor against the principles of sound j)olicy or the positive provisions of some statute law. Bent says the general and more liberal principle of discrimination is, that whether any matter, void by statute or by the common law, be mixed up with good matter, which is entirely independent of it, the good part shall stand, and the rest be held void; though if the part which is void depends on that which is bad, the whole instrument is void. — 2 Kent’s Com. 468; Howe v. Synge, 15 East, 440.

In Armstrong v. Toler, (11 Wheat. 258,) the following illustration of the law was declared: “ Where A, during a war, contrived a plan for importing goods on his own account from the enemy’s country, and goods were sent to B by the same vessel. A, at the request of B, became surety for the payment of the duties on B’s goods, and became responsible for the expenses on a prosecution for the illegal importation of the goods, and was compelled to pay them: Held, that A might maintain an action on the promise of *651B to refund the money. But if the importation is the result of a scheme between the plaintiff and defendant, or if the plaintiff has any interest in the goods, or if they are consigned to him with his privity, in order that he may protect them for the owner, a promise to repay any advances made under such understanding or agreement is utterly void.” The mere knowledge of one party of the illegal conduct or intention of the other, is not sufficient to vitiate a contract between them. Some participation in the illegal act done or contemplated must enter into the consideration of the contract to have that effect. In Bowery v. Bennett, (1 Camp. N. P. C. 343,) where an action was brought against a prostitute to recover the value of some clothes which had been furnished by the plaintiff, Lord Ellenborough said, that the mere circumstance of the defendant being a prostitute, within the knowledge of the plaintiff, would not render the contract illegal. In order to defeat the action, it must be shown that the plaintiff expected to be paid out of the profits of the defendant’s prostitution, and that he had sold-her the clothes in order to carry it on.

If the sale of the horse was attended with such circumstances as were inconsistent with any other intention or purpose of the plaintiff than to have it used in hostility to the United States, the contract of sale would be void. Whether such purpose existed or not, must be determined by the jury. In this particular is the difference between this case and The Oxford Iron Co. v. Quinchett, (44 Ala. Rep. 487).

The judgment is reversed, and the cause remanded.