Goodman v. McGehee , 31 Tex. 252 ( 1868 )

Lindsay, J.

— In this case, concurring as I do in the general conclusion of the opinion delivered by the chief justice, which directs both a reversal of the judgment and dismissal of the cause from the dockets of the courts, because of the illegality .of the contract, yet I cannot give my official sanetion to some of the deductions made from the authorities quoted and relied upon. I fully concur in the correctness and just reasoning of those authorities. But in my view they do not warrant the inferences drawn from them in the opinion, and which would go to the world as the unanimous opinion of this court if this dissent was not made manifest. While I fully agree that every contract made in violation of law, whether by parol or in writing, will he, and ought to he, universally declared by the courts to he a nullity; in other words, that all illegal contracts are and should be declared Void; and, though they may be reduced to writing, that a plea or defense of illegality may he properly set up and established by parol proof, I am not prepared nor willing to go so far as to unite in the declaration, as a legal maxim, “that a contract, the consideration or performance of which is illegal, is void.”

I cannot give my assent to such a proposition. A very legal contract might be very illegally performed to the satisfaction of the contracting parties, and yet there might be no vice in the contract. Performance is no inherent part of the contract for the exposition of courts of justice. If the subject-matter about which the contract is made in writing is legal, and there he no stipulation in it for performance in an illegal way, parties will not be heard to allege such illegal understanding. It is the subject-matter about which contracts are made that constitutes their legality or illegality. And it is because of the turpitude or unlawfulness of the subject-matter that courts refuse to entertain jurisdiction of them, and always dismiss them from consideration. Many a contract, perfectly legal in itself, has been illegally performed, in the progress of the late war, when paid off in Confederate money. Where so accepted by the payee voluntarily it was at least an accord and satisfaction between the parties, though an illegal performance. Thus much I feel myself hound to say in justice to my own legal convictions.