Opinion
8 Div. 564.
October 18, 1923. Rehearing Denied December 6, 1923.
Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.
W. L. Chenault and Travis Williams, of Russellville, for appellants.
If a note is given in consideration of the settlement of a criminal prosecution, it is absolutely void. U.S. F. G. Co. v. Charles, 131 Ala. 658, 31 So. 558, 57 L.R.A. 212. The court committed error in refusing charge 3 for defendants. West v. Teabo, 14 Ala. App. 575, 70 So. 957; People's Bank v. Floyd, 200 Ala. 192, 75 So. 940.
B. H. Sargent and William Stell, both of Russellville, for appellee.
If the note was given to secure a debt, it is binding. Moog v. Strong, 69 Ala. 98; Howard v. Rhodes, 17 Ala. App. 26, 81 So. 362. If there is a scintilla of evidence supporting plaintiff's case, the affirmative charge is properly refused to defendant. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Massey v. Penticost, 206 Ala. 411, 90 So. 866. Charge 3 was bad in form. Goldstein v. Leake, 138 Ala. 573, 36 So. 458.
There was no motion for a new trial presenting for review the sufficiency of the evidence, and the scintilla rule obtains. Howell v. Howell, 98 So. 630; Patterson v. A. C. L. R. R. Co., 202 Ala. 583, 81 So. 85; Penticost v. Massey, 202 Ala. 681, 81 So. 637; Id. 206 Ala. 411, 90 So. 866.
Post, p. 429.
There being evidence from which a reasonable inference may be drawn adverse to defendants, the affirmative charges requested by them were properly refused. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.
It is unnecessary that there be a consideration passing to the surety in the contract, if there is a valid and lawful consideration between the principal and the payee therein. Such consideration is sufficient to bind the surety joining in the execution of such contract. Christie v. Durden, 205 Ala. 571, 88 So. 667.
If the note sued on was executed under an agreement of the parties thereto to suppress pending prosecutions against one of the makers of the note, it was void for want of a consideration, as forbidden by public policy. Moog v. Strang, 69 Ala. 98. The like rule obtains where there is a "partial illegality" of the consideration. Armstrong v. Walker, 200 Ala. 364, 76 So. 280; People's Bank Trust Co. v. Floyd, 200 Ala. 192, 75 So. 940; U.S. Fidelity Guar. Co. v. Charles, 131 Ala. 658, 31 So. 558, 57 L.R.A. 212; Wadsworth v. Dunnam, 117 Ala. 661, 670, 23 So. 699; Carrington v. Caller, 2 Stew. 175; Wynne v. Whisenant, 37 Ala. 46; Pettit's Adm'r v. Pettit's Distributees, 32 Ala. 288.
If, however, the note was for the purpose of securing a debt due by W. A. Orman (one of the makers appellant) to the payee, it would be valid and binding as to each of the makers of the note. And the evidence authorized the submission to the jury of the issues of mutuality and of sufficiency of the consideration.
The defense was that the whole consideration of the note was the suppression of the pending prosecutions. There was no error in refusing charge No. 3 seeking to instruct as to a part of the consideration being illegal. The court, in its oral charge, fully and fairly submitted to the jury the lack of consideration of the note — that it was for the compounding of a felony.
We have respectively responded to the several assignments of error sufficiently insisted upon in argument of counsel, have examined the several objections and exceptions to the introduction or exclusion of evidence, and find them without merit. It will serve no good purpose to discuss them in detail, nor is this necessary.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.