Hook v. Gray , 6 Barb. 398 ( 1849 )

By the Court, Edmonds, J.

The evidence offered on the trial below sought to establish the fact of an original corrupt agreement between these parties, in relation to the office of flour inspector, in order thence to infer that the contract on which this suit was brought, was void, because of the illegality of its consideration. If such original agreement had been the only consideration of this contract, the evidence might perhaps have been proper; for there can be no doubt that the agreement sought to be proved was illegal and void, as corrupt in itself and contrary to principles of public policy. (Parsons v. Thompson, 1 H. Black. 322. Tappan v. Brown, 9 Wend. 175. Law v. Law, 3 P. Wins. 391.) But the contract on which the plaintiff below sought to recover, and which was in evidence, showed very distinctly that that was not the only consideration. That was doubtless part of it, but there were farther considerations, either of which were sufficient to support the agreement. One was Gray’s promise to pay the note that was then in the hands of Ketchum, and the other was the sum of one dollar then presently paid to Hook.

It is well settled that a contract providing for the performance of an illegal act, or having its consideration in such act, can not be enforced; but where the contract is disconnected with the original unlawful act, and is founded on a new and distinct consideration, an action may be maintained upon it, though it could not be maintained upon a contract arising out of the illegal act. (Armstrong v. Toler, 11 Wheat. 267.) In this case, the illegal act has. been performed—the unlawful contract executed—before that now in suit was made. Gray’s note had been transferred to, and was in the hands of, one who may have been a bona fide holder; and in consideration of his paying that note, this contract was made. The court below might then well have held the promise to be unconnected with the illegal act, and founded on a new consideration, unconnected with the original act, though remotely caused by it., The court, in Armstrong v. Toler, illustrate the position by remarking that, however strongly the laws may denounce the crime of importing goods from the enemy in time of war, the act of defending a. prosecution instituted in consequence of such illegal importation, is perfectly lawful.

In the case before us, the illegal act was the agreement to divide the fees of the office, and create an illegal deputation to a public office. I do not understand the evidence offered as intended to show that the agreement to defend the suit of Tappen was any part of the original agreement. But the case, as made out on the trial, with the addition of the evidence offered, went to show that agreement to have been subsequent and collateral to the alledged illegal act, the direct and immediate consideration of which is not illegal. Faikney v. Reynous, (4 Burr. 2069,) was a case very much in point, and is a strong case to show that a subsequent contract, not stipulating a prohibited act, although for money advanced in satisfaction of an unlawful transaction, may be sustained in a court of justice.

It is in obedience to these authorities that I am inclined to think the court below did not err, and their judgment ought to be affirmed.