Folmar v. Siler

31 So. 719, 132 Ala. 297, 1902 Ala. LEXIS 97

• Court: Supreme Court of Alabama
• Decided: February 13, 1902
• Status: Published

Opinion

DOWDELL, J.

— It is conceded that the notes sued on represent funds that had been embezzled from the payee —the plaintiff in this case — by the son of the defendant, and that the same were given to secure the payment of the amount so embezzled, with interest in the face .of the notes at the rate of 8 per cent per annum for one year in one note and two years in the other, and that the defendant signed the same as surety for his son. On the trial of the cause, by agreement of parties, the pleadings were in short by consent with leave to give in evidence any matter which might be specially pleade d.

One of the defenses set up was that of illegality of consideration in the notes sued on; that the notes ,were executed by the defendant as a surety in consideration of an agreement and promise by and on the part of the plaintiff that the crime of the defendant’s son would be kept secret, and “that the matter should never be heard of any more, and it should go no further.”

That a contract, the consideration of which is in part illegal, is invalid and cannot be enforced at law, is a question too well settled to admit of doubt.—Petit v. Petit, 32 Ala. 288; 1 Brick. Dig. 282, § 116. Neither can i.t be doubted that a contract based upon a promise or agreement to conceal or keep secret a crime which has been committed is opposed to public policy and offensive to the law.—Clark v. Gilbert, 67 Ala. 92; Moog v. Strang, 69 Ala. 98; U. S. Fidelity & Trust Co. v. Charles, in MS. And it makes no difference if the contract contains' an additional confederation’.that is legal and valuable. Whenever a crime is committed, and especially one that involves moral turpitude, the public good calls for a prosecution of the guilty party, and any effort to prevent the punishment of the offender by suprésssion :or concealment is opposed to public policy. Any promise or agreement to do, or not to do, a thing, the doing- of which, or the not doing of which, contravenes, public policy, will vitiate the contract!, the consideration of which consists in whole .or in part of such promise or agreement. In’the cáse of the U. S. Fidelity & Trust Co., v. Charles, decided at the present term, we have had occasion to"review the, case of Bibb v. Hitchcock, in the 49th Ala., page 468, and declined to follow that case ini so far as ‘it asserted * any proposition opposed to the views"above expressed.

There can be no doubt of the question' that it is competent to show the consideration of the notes sued upon by parol evidence.—3 Brick. Dig., 88, ’§' 90. There is nothing in the exception which was reserved to the introduction! of evidence to show tlie consideration of. the notes sued upon.

There Avas evidence tending to. Shbw that a promise or agreement oh the part of thd1 plaintiff to conceal the crime of W. S.’ Siler, the principal in' the notes on which the defendant W./f). Siler Avas surety, entered as consideration into the gmng of tlie notes sued on, and under the principles above laid down, the court committed no error in the giving of Avritten charges numbered one and three, requested by the defendant For the same reason the affirinative; charge requested' by the plaintiff Avas properly refused.

There Avas also evidence on the part of. the defendant tending to shoAV that at the time of the signing of .the notes sued on, the plaintiff fraudulently represented the notes, which he had prepared and handed to the defendant to sign, to contain the contract agreed upon, and the defendant relying upon such representations signed the notes, Avhich contained a different contract from that agreed on. Upon this phase of the evidence the giving of charge No. 2 at the request of the defendant was free from error.

There was also evidence tending to .show that the defendant was induced to sign the notes as surety upon an agreement or promise on the part of plaintiff to give Stacy Siler employment at $35 a month for a given period, and with the consent of Stacy, given at the time, to credit upon the notes at the expiration of each month’s service; tÁventy dollars of Stacy’s wages for such month, and that Stacy entered into the service of plaintiff: Under said contract, and after four or five month’s service, it was discovered that Staley Avas again misappropriating the money of the plaintiff, when his employment Avas terminated. On this phase of the'evidence,’ there was ho error in that part of the oral charge excepted to relating to this issue as sho wn in the'bill of-excep tions. :

If the promise to credit the notes with a part of Stacy’s wages at the end of each month, as the same were earned by him,.formed a part of the contract between plaintiff and the defendant in the latter’s, signing the notes' as surety, then it was the duty of the plaintiff to enter the credits in accordance with the contract, notwithstanding Stacy’s subsequent embezzlement of plaintiff’s funds, for which this defendant was in nowise responsible. For the same reason above stated, the court very properly refused written charges 7 and 9 requested by the plaintiff.' Charges 6 and 8 requested by the plaintiff, ignored the evidence as to illegality of consideration entering into the contract, as well as that relating to fraud in the execution of the same, and were misleading in their tendencies, and, therefore, Avere properly refused. What we have said above in regard to the written charges excepted to, without more, sufficiently disposes of the exceptions reserved to portions of the court’s oral charge set out in the bill of exceptions.

There Avas no error in the court- stating to..the .iury whait the evidence of á particular witness" w"a§,' when the same was in dispute. This was authorized- by section 2326 of the Code of 1896. • '•'

We find no error in the record-,. and the judgment of the court below will be affirmed. ■