Washington v. Burnett, 4 W. Va. 84

Washington v. Burnett

4 W. Va. 84 | W. Va. | 1870

Brown, President.

This was an action of debt on a bond, for the payment of money to which there were two pleas, viz: payment, and a special plea of release. The facts proved showed the debt paid partly in lawful money, partly in wheat at a stipulated price, partly in orders on the treasurer of the confederate states, so-called, and the residue in confederate money, *95which payments were accepted and received as such in full of said bond; but the bond not being in the possession of the plaintiff, to be- surrendered up, he then agreed and undertook to procure and deliver it to the defendant, and thereupon gave to the defendant a receipt in full of the balance on said bond so paid, and also a release of the trust deed given to secure the bond. The jury found a verdict for the defendant, which was set aside on motion of the plaintiff', and a new trial granted, and a second trial had, and a second verdict found for the defendant. The plaintiff again moved the court to set aside the second verdict, which the court refused. No objection was raised to the admissibility of the evidence under the pleadings; but it is objected that a payment in orders on the treasurer of the confederate states, so-called, and iu confederate money, is illegal and void. It was as illegal to receive as to pay in a currency which was illegal, because against public policy; and the courts will no more aid the one party than the other. The payment was fair between the parties, without fraud or misrepresentation; both understood what they were about, with full knowledge of the article paid and received in payment.

An executed contract is one in which the object of the contract is performed. Marshall, C. J., 6 Crauch, 136. A debt paid is a contract executed; and an executed contract, even though illegal, will not be disturbed between the parties to it. Wylie v. Brown, 2 W. Va. Rep., 503.

Again, a formal release was pleaded, and though the release, as pleaded, is not offered in evidence, or at least not made part of the record in the bill of exceptions, yet it is certified as in proof, without objection, that upon the payment of the debt as above stated, the plaintiff not having the note in his possession, gave his receipt in full for the balance on the bond, and undertook to obtain the bond and deliver it to the defendant. Parol evidence was also given, without objection, of the execution of a release of the deed of trust by which the bond was secured. There is nothing to show *96that the release as pleaded was not the same referred to in the evidence, and if not produced, yet its contents were proved, without objection,-substantially.

In refusing the instruction as asked by the plaintiff, and in giving the instruction which the court did give, there was no error to the prejudice of the plaintiff, of of which he could complain.

I think, therefore, that the judgment of the court below should be affirmed, with costs and damages to the defendant in error.

The remaining members of the court concurred.

Judgment affirmed.