Sanderson v. Goodrich ( 1866 )

By the Court, Boardman, J.

Illegallity of a contract, when it is capable of a legal construction, is not to be presinned, (34 Barb. 533;) and I first thought this contract might be so read as to constitute a lease of the bar, a contract to board, and a covenant that Shutes would not sell liquor under his license to compete with Goodrich, who should have the whole business, notwithstanding the old license: - But the language of the contract is too broad and explicit to allow of such innocent construction. It must be held that the contract, in providing for a violation of the law, was illegal and void, and as between Shutes and Goodrich, could not have been enforced.

The plaintiff stands in no better situation than Shutes. The evidence satisfies me, as it did the' referee, that the plaintiff knew the terms of the contract, before he took the note. _ If he did, he became a party to the illegal contract, and can not enforce payment of the note. He not only knew the purpose for which the arrangement was made, but was aiding and assisting in carrying it out.

The appellants counsel claims that the instrument was hot void in toto, because part of the consideration—the lease and the contract to board—were legal and valid. • That might be true if the several undertakings were distinct, so that what was legal could be separated from what was illegal. (Curtis v. Leavitt, 15 N. Y. Rep. 12, 14, 96.) But the difficulty here is, that it is impossible to divide this $200, and know what part of it is applicable to the legal and what, to the illegal portions of the contract. , The consideration to be paid is a gross sum, without the means of separating or distinguishing ■ the good from the bad. In such case an action will not lie. (Rose v. Truax, 21 Barb. 361. Brown v. Brown, 34 id. 533.) The plaintiff’s position forbids the application of the rule laid down in Tracy v. Talmage, (14 N. Y. Rep. 162.) He stands in the same position as Shutes would have stood in if he had taken the defendant’s t note, 'and had sued upon it. The plaintiff knew what it was given for, and that it was void for want of a legal consideration ; that it was made for him, and that he parted with no consideration for it. Under such circumstances the plaintiff has no greater right to recover than Shutes would have had. Besides, in taking the proceeds of the void contract with full knowledge of, and acting in, the transanction, he became a party to it,- and for that reason also should tio't be allowed to recoven

[Broome General Term, May 8, 1866.

Having thus determined, upon the merits of this case, that the plaintiff is not entitled to recover, it is unnecessary to examine the various exceptions on the part of the plaintiff to the admission or rejection of evidence. Whatever might be the result, it could not affect- the final disposition of the case.

The judgment should be affirmed with costs.

Barker, Mason, Balcbni and Board-man, Justices/]