A. S. Kottwitz v. Representatives of A. M. & C. C. Alexander, deceased, and another, 34 Tex. 689

Morrill, C. J. This is a suit on a draft for four thousand dollars. Exceptions to .the cause of action were sustained. The appeal involves the propriety of the judgment of the court sustaining the exceptions. There were petitions and amended petitions filed.

The original petition, filed .fourth of J.uly, 1866, states ithe names and residence of the parties plaintiff and defendants, alleging the residence of one of the parties to be .in .the county in which the suit is .instituted ; that, previous ,to January, 1865, the testators of defendants were partners trading and doing business at San Antonio, and known by the firm name of A. M. & C. C. Alexander; the death of C. C. Alexander in January, 1865; the death of A. M. Alexander in July, 1865; the borrowing of four thousand dollars .in gold from plaintiff by A. M.

Alexander, in May, 1865, all of which was expended in .the payment of the firm debts contracted previous to ithe death of C. C. Alexander; the execution, in consideration of this loan, of a draft calling for four thousand dollars at five days sight; on L. C. Alexander, payable at the request ©f plaintiff to Russell, Morrow & Co.; the payment of this- sum to Russell; Morrow & Co. by plaintiff; the non-payment, of the draft; the presentation of it, duly sworn to as to its-justness, to-the-representatives of both O, C. Alexander and A. M. Alexander, and’-a-refusal of each- to acknowledge its justness.

An amended petition, filed twenty-seventh of November,. 1866, recapitulates the material: allegations- in the original petition, and also the agreement between the partners; “ that if either of them should die-before the cotton could be exported to Mexico; or before-the enterprise was completed, the survivor should proceed to- carry out the object of the partnership the same as though both were living;” and also states that at the time the draft was drawn the drawee was dead, and that the drawer had no funds in the hands of the drawee at the time of the execution of the draft • also, that the drawee was insolvent at and before his death, and that plaintiff is both the legal and equitable owner of the draft.

On the sixteenth of December, 1867, an amended petition was filed, stating that one-Knox was a partner of the firm, known as A. M. & C. C. Alexander, and appends to petition, as a pari? thereof, the- articles of partnership; signed by all the parties. This-agreement-disclosed^ that the parties bad formed an alliance with the Military-Board of Texas, whereby the firm- agreed to oarry their cotton to Mexico, and bring to the Military Board:cotton cards.

Plaintiff alleges in this- petition “ that he did not know, at the beginning of the suit, that the Alexanders and Knox were partners.” The défendants-filcd ten-exceptions to the plaintiff’s several-petitions, as-follows :■ First—That the cause of action in plaintiff's petition and amendments is based upon a contract made in violation of the laws-of the United States, and especially, againstithe revenue laws thereof. an d is therefore nail -and -void, and can have -no -standing in a court of justice.

Second—Because the cause of action set forth ¡"in ’.plaintiff’s petition and amendments twas on a contract for the purpose of procuring for-the State of Texas, ¡then in open rebellion against the laws and authority of the United States, arms and ammunition and materials for then manufacture, whereby the better .to enable said State to resist, by armed rebellion, the laws and authority of the United States; wherefore they say the same can have no standing in a court of justice.

Third—Because the contract upon which plaintiff’s pretended -cause ©f action is based was made in violation of the laws.of the United States, -as well as of the laws of nations, in this, that it was for the exportation and importation of material and implements for the manufacture of army supplies, contraband -of .war; and ,is therefore entitled -to no standing .in a court of justice. Fourth—Because the consideration of .the ¡draft upon which plaintiff sues, as alleged by his pleadings, was for money lent to A. M. & 0. C.

Alexander, the agents ef .the Military Board of the State of Texas, to enable said firm to purchase and bring in, from a foreign .nation, military supplies,- implements and material for -their manufacture, the better to enable the State of Texas, one of--the so-called Confederate .States, then in open rebellion against the Uavemment of .the United States, to carry on war against the •United States, alike contrary to public law and public policy, and therefore void.

Fifth—Because, long before the making of said draft or instrument upon which the suit is founded, that the pretended partnership, heretofore existing between A. M. & 0. C. Alexander, was dissolved by the death of the said C. C. Alexander ; and that the defendants, nor neither of them, can be made liable for the sum of money mentioned in the instrument sued on, or any part thereof. Sixth—Because the defendants, the executors - of C. C. Alexander, deceased, are improperly joined with the legal representatives of A. M. Alexander, deceased.

Seventh—Because it is not averred in said petition or amendments thereto that the said A. M. Alexander did not pay the money mentioned in said instrument. Eighth—Because the executors of C. C. Alexander, deceased, are improperly sued without the county in which the administration of the estate of C. C. Alexander is opened.

Ninth—Because the instrument sued upon, being a negotiable bill, has never been protested for non-acceptance or non-payment, nor was suit instituted thereon at the first term of the district court, after the same became due, nor at the second term with sufficient showing why it was not sued upon at the first term of the district court. Tenth—Because said instrument upon which suit is instituted is payable to the order of Russell, Morrow & Co., and has never been indorsed by them to this plaintiff.

The four causes of exception first named, being similar, may be considered together: and their tendency is to defeat the cause of action for illegality. That it is a general rule that “if any part of the entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or at common law, the whole contract is void,” has been often decided. (1 Parsons on Contracts, 456.) But this illegality must enter into the contract and form a part of it.

It does not follow, that because one of the parties to a contract, apparently legal in itself, intended by means .thereof to do an illegal act, that the contract was illegal. “There must be an illegal intent of some kind; mere knowledge that an illegal use may or ever will be made of the thing seems not to be enough.” (H.) .... The intention with which a party does

an act stamps, the act as; unlawful and criminal, or legal and innocent; and as in criminal so in civil cases, the intent becomes sometimes the pivotal point of a cause. (Paschal’s Digest, articles 1651-3.) Admitting that it was illegal to export cotton to Mexico, it does not follow, that it is illegal to pay debts contracted in the purchase of teams and supplies for that purpose. It is alleged in the petition that the money received from the plaintiff was so appropriated.

But we may admit, further, that the plaintiff loaned the intestates of defendants the money, for the recovery of .which this suit is brought, for the purpose of enabling them to take cotton to Mexico in 1864, and still, unless he did something more than this, if the conveyance of the cotton was illegal, nothing would be shown to avoid the recovery of the money. In Kneiss v. Seligman, 8 Barb. N. Y.

Reports, 449, after a thorough review of both English and American authorities on the points then under consideration, the court say: “The doctrine established by the authorities to which I have referred, and others on the subject, I hold to be this: that where a party who sells goods or advances money to another, with knowledge of a design on the part of the latter to put the goods or money to an unlawful use, does any act whatever beyond the bare sale, etc., in aid or furtherance of the unlawful object, he cannot recover. “ Or if the illegal use to be made of the goods or money enters into the contract, and forms the motive or inducement in the mind of the vendor or lender to the sale or loan, then he cannot recover, provided the goods or money are actually used to carry out the contemplated design.” There is no pretense in the case before us that the plaintiff, in lending his money to the defendants’ intestates, was actuated by any other than lawful and friendly motives.

We may assume to know, historically as well as from observation, that cotton was the main motive power in the finances of the rebellious government, and that those assuming official positions. acted as if it were their individual - property, or the property of the Confederate States. That every bale that was exported beyond the power of this Confederate government was pro tanto a diminution of their resources; and, on the contrary, every bale that passed beyond the Confederate lines into other parts of the United States was, in the same proportion, to the advantage of the United States.

Such were the extraordinary prices commanded by cotton during the last years of the rebellion, and such was the demand for it, that the President of the' United States is known to have said, that an exchange for it of gunpowder and ball by the United States with the Confederates would be an advantage to the former. We know of no law that would be violated by taking cotton to Mexico in 1864. It has been suggested that the United States required certain duties to be paid on cotton, and the exportation of it to Mexico was virtually defrauding the United States of its revenue.

But this does not follow as a matter of course. The party defendants were not precluded from paying duties; and if the cotton was really exported, of which there is no allegation, and the duties were not paid, which is not alleged, and. the defendants have conscientious scruples, the duties can still be paid.

Before we can admit that the plaintiff is chargeable with any illegal acts and intentions in lending the money sued for, it must appear that the defendants actually used the "money for an illegal object, and that the plaintiff was fully apprised of the illegal acts intended, and furnished the money for that purpose.

As to the statement that the contract with the Military Board to introduce in the State of Texas certain military supplies, it is a sufficient answer that the plaintiff’s allegation in his petition is, that he was not aware of the contract with the Military Board till after the institution of the suit; and of course, on the exception, this statement must be regarded as true; and, whatever was intended by the defendant, cannot affect'him.

The statutes of the United States, in force at the time of the transaction, contemplated that cotton would be removed from the States in insurrection, and provided for the payment of duties after removal. The act of thirtieth of June, 1864,

section 179, (2 Brightly’s Digest, 274, § 301,) provides : “Whenever any cotton, the product of the United States, shall arrive at any port of the United States, from any State in insurrection against the government, the assessor or assistant assessor shall immediately assess the taxes due thereon, and shall, without delay, return the same to the collector or deputy collector of said district; and the said collector or deputy collector shall demand of the owner, or other person having charge of said cotton, the tax imposed by this act arid assessed thereon, unless evidence of previous payment of such tax shall be produced.” The sixth error assigned is that the defendants, the executors of 0. 0.

Alexander, are improperly joined with the legal representatives of A. M. Alexander, deceased. The petition states that the draft was executed by the firm composed of A. M. Alexander and G. 0. Alexander, whose firm name was A. M. & 0. 0. Alexander. If either or both of the estates of the deceased are not liable on the draft, it can be shown in this action, and a judgment against one, and not against the other, will result in no injury to the one released. Besides, the rules of pleading, as found in any elementary treatise on this subject, as well as the act of the Legislature,

article 1452, Paschal’s Digest, require that all parties, liable upon the same cause of action, if within the jurisdiction of the court, especially if joint parties, not only may, but must, be joined in the same action. It would have been error to have brought separate suits. The fifth cause assigned is that it appears that 0. G. Alexander was dead when the draft was executed.

There being nothing in our statutes affecting the question of the dissolution of the partnership by death, we necessarily resort to the law, which is the rule of decision in such cases. (Article 973.) By the common law of England “the death of one partner will operate as a dissolution of the partnership.” (Story on Part., § 317.) But although a dissolution of the partnership takes place, by law, upon the death of any one of the partners, this proposition must be understood with the limitation that by the articles of partnership, or other agreement between the parties, it is not otherwise stipu-' lated by the parties.

For it is entirely competent for the parties to vary this general result of law by an express agreement. (Id. § 319a.) The allegation in the petition is “that it was agreed, by and between the Alexander partners, that if either of them should die before the cotton could be exported to Mexico, or before the enterprise was completed, then, and in that case, the survivor should proceed to carry out the object of the partnership, the same as though both were living.” Admitting this to be true, it would seem that the 'court could not and did not sustain the demurrer upon the exception above stated.

The next exception (being the ninth in order) that we shall notice, is that the draft was not protested, and therefore the liability of the drawers was not fixed agreeably te

article 232 of the Digest. That laws are to be construed agreeably to the dictates of common sense, and to carry out the intention of the Legislature, is not a subject of controversy. Among the fundamental legal principles are, lex nil frustra facit, lex neminem cogit ad vana seu inutilia.” (Broom’s Legal Maxims, 249.) It certainly would be both vain and useless to inform the drawers of a draft that the drawee had no funds to pay the draft, when they themselves knew it when it was drawn.

As the petition states, “ that at the time said draft was drawn, that the drawers and neither of them had any funds in the hands-of L. C. Alexander (the drawee), whereby said draft could be-paid, and were well aware of this fact when the same was drawn,” we conceive a further notice of the fact by a notary public would he unnecessary. The seventh and eighth exceptions are, if possible, more frivolous than the sixth just considered, and the articles-1423 and 1427, Paschal’s Digest, will furnish sufficient answer.

We believe that the plaintiff has shown a good cause of action, and that if upon trial his allegations can be substantiated he will be entitled to a judgment. There are a great many useless and irrelevant allegations in the petition, as well as in the answer, which serve, as it seems, to confuse both the parties engaged therein, and others. The judgment is reversed and the cause- remanded. Reversed and remanded.