Meacham v. Dow

32 Vt. 721

Opinion

Poland, J.

If the plaintiff had shown himself the owner and bona fide holder of the note in suit, the defendant could not have defeated the action by showing a want of consideration, or that the consideration was illegal.

But the jury having found that the suit was prosecuted in the name of the plaintiff, for the benefit of Burnham, the payee, any defence that could be made to an action in his name, would be equally available in this.

By the contract of the parties, when the note was given, the-note was to be void unless the defendant succeeded in obtaining the office of mail agent, and this was evidenced by a writing executed simultaneously with the note.

If the subject matter and consideration of the note had been perfectly legal, this alone was a sufficient defence, as the defendant never obtained the office.

But the consideration of the note was really for the sale of the office Burnham held, which made the note illegal and void, as between the original parties.

The principles settled in Ferris v. Adams, 23 Vt. 136, are decisive of the case on this point. It was then held that a note executed by a deputy sheriff to the sheriff, as the price of his appointment as depuly, was illegal, and that no recovery could be had upon it.. The law upon the subject is very fully examined and stated iu the opinion of the chief justice in that case, and we need only now to refer to that opinion.

The subject of the validity of contracts for the influence and services of one iu promoting the election of another to an office, was before this court, and was fully examined and decided on the present circuit in Chittenden County.

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In that case the defendant set up as a defence to a book account, due from him to the plaintiff, that the plaintiff agreed that if the defendant would use his influence and efforts to procure the election of the plaintiff, as a representative to the State Legislature, and vote for him himself, the same should be in full satisfaction and discharge of the account in suit in case he should be elected. The defendant proved a full and successful performance of the contract ou his part, but it was held by the court that this contract was illegal and void, and formed'no defence to the action. '

That case would seem to cover this fully.

The case of Thetford v. Hubbard, 22 Vt. 440, where it was held that a note given by a constable to the town upon bidding -off the office in town meeting, was legal and could be collected, goes entirely upon the special provisions of the statute on that subject, which in terms authorize towns to contract with some person to fill that office. The court in that case seems to treat such a note as illegal upon general principles.

The directions to the jury were clearly right .and the judgment is affirmed.

See Nichols v. Mudgett, ante p. 546.