Wynne v. Whisenant , 37 Ala. 46 ( 1860 )

STONE, J.

If the defendant in this case had pleaded, that the consideration of -the note sued on was, that the plaintiff should abandon tlie prosecution he had instituted against the defendant- — should leave tlie State, and not appear as a witness on tlie. trial, and tbat the plaintiff', in violation of bis agreement, had appeared and given evidence .on the trial against defendant, — the plea would, perhaps, be double, and unnecessarily prolix ; but a demurrer to it would not be sustained. Tlie plea being in this form, no one, we apprehend, would gainsay the right of the defendant ■to introduce evidence in support of each averment in the plea.

Again : The case of Kirkman v. Eaton, (35 Ala. 272,) is, at least, an implied authority for the proposition, that •one who has a valid defense to an executory contract, on the ground of -illegality of consideration, may waive that ■•specific defense, and rely on the averment that the aggregate mentium — the concurrence of minds between the contracting parties — has never been consummated. In the case cited, although the note was executed to be wagered, and was wagered on the result of an election that was pending; yet the plaintiff recovered in the court below, and the judgment was affirmed in this court. •

The plaintiff having declared specially on the note in this case, which note purported to be signed by the party sought to be charged, he made out a prima-facie case for recovery when he read his note in evidence. — Code, 2278-9. It was competent for defendant, under an appropriate issue, to prove that the consideration was, either in whole or in part, illegal; or, waiving that, to show that the plaintiff had violated his part of the agreement, which furnished the consideration of the promise. If the consideration was in part illegal, it avoided the whole note.— 1 Story on Contracts, §§ 569, 459 ; 1 Parsons on Contracts, 365, note.

In the present record there are no pleas. In such case, it is our duty to presume that proper pleas were filed to let in the evidence. — -Shep. Digest, 572, § 152.

The first and second exceptions of defendant are covered by what we have said above. There is nothing in the third exception. It was certainly permissible for either party to prove the real consideration of the note.

■Judgment-affirmed.