In a suit at law by the payee of a promissory note or his
representatives, against the maker, evidence is inadmissible to
show that the note was not intended to be a promissory note, but
was given as a memorandum not to be enforced against the maker.
A defense in an action at law by the payee of a promissory note
or his representatives that there was a failure of consideration in
that the note was based upon certain partnership transactions
between the parties which are
Page 117 U. S. 583
still unsettled and the amount due from the one to the other
therefore unknown, is an equitable defense which cannot be set up
in that action.
The making of a champertous, and therefore under the law of the
state void and illegal, contract for the prosecution of a suit to
collect a promissory note cannot be set up in bar of a recovery on
the note.
This was an action at law upon a promissory note. The case is
stated in the opinion of the Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
This was an action at law brought by Milton Courtright against
James N. Burnes, the plaintiff in error, upon the note of the
latter made at Chicago and dated October 10, 1872, whereby he
promised to pay, thirty days after date, to the order of F. H.
Winston, $7,333 at the Cook County National Bank, in Chicago.
Courtright, by endorsement and transfer, became the owner and
holder of the note. The defendant pleaded four pleas:
The first of these was a general denial of the averments of the
petition.
The second plea was in substance as follows:
That when the note was made, the plaintiff Courtright, the
defendant Burnes, the said Winston, and one Campbell had been and
were partners in a contract for building a certain railroad therein
named; that prior to the date of the note, Winston had received and
was in possession, as part of the assets of the partnership, of
forty bonds for $1,000 each, of the City of Atchison, subject to
the payment of the partnership debts, and, after such payment, for
distribution among the partners; that a short time before the date
of the note, the partners had appointed the defendant a trustee to
settle the partnership affairs; that when the note was given, the
partnership affairs had not been settled, and were not settled at
the time of filing the plea; that at the time of the making of the
note, Winston turned over to defendant the bonds above mentioned,
and estimated that there would be due him, as a partner in the
firm, from its assets, the sum mentioned
Page 117 U. S. 584
in said note, and thereupon requested the defendant, as trustee
of the partners, to make the note
"with the understanding that the same was not to be sued on, but
was to be deemed a mere memorandum of the amount that should be
estimated as the share of said Winston, on account of said bonds,
in a settlement among said partners;"
that the defendant executed the note accordingly, as trustee of
the partnership and not as his individual note, and the plaintiff
acquired title to the note with knowledge of these facts.
By the third plea it was averred as follows:
That the note sued on
"was and is wholly without consideration, and is null and void,
and that said note is based upon and grew out of transactions
relating to the business of said partners; that said partners are
interested in the same, and are necessary parties to a suit
relating to said note, and the amount due in said note, if any,
cannot be ascertained until a final settlement of said partnership
can be had."
The last plea was that the suit was prosecuted under an
agreement between the plaintiff and George W. De Camp, his
attorney, whereby the latter undertook to prosecute the suit, and
pay all the expenses incident to its prosecution, in consideration
that he should receive four-tenths of the amount recovered.
The parties waived a trial by jury and submitted the issues of
fact, as well as of law, to the court, which made a general finding
for the plaintiff and entered judgment thereon in his favor against
the defendant Burnes for $11,401.60, who thereupon sued out this
writ of error. After the record was filed in this Court, Courtright
died and the executors of his last will were made defendants in
error in his stead.
The bill of exceptions shows that upon the trial of the case,
the defendant, to sustain the issue on his part, offered evidence
tending to show that "Winston, the payee and assignor of the note
sued on," Courtright, "the plaintiff," Burnes,
"the defendant, and one Campbell, were the contractors for the
construction of the Chicago and Southwestern Railroad, as partners,
and that Winston was entitled to an interest of two-fifteenths in
such contract; that Winston had charge of the execution of
Page 117 U. S. 585
the contract, and possession and control of the assets arising
from the contract; that after the completion of the road, in
October, 1872, Winston delivered to defendant forty bonds of the
City of Atchison for one thousand dollars each, which had been
received and were then held by him as part of the assets under such
contract; that the bonds were delivered by Winston to and received
by defendant as the trustee for the parties in interest in the
contract, and that at the time the bonds were so delivered
defendant gave to Winston the note sued on."
The defendant also offered evidence to show
"that the note sued on, when given, was not intended by him, the
maker, nor by Winston, the payee, as a promissory note, but was
only intended, and so given by him and received by Winston, as a
memorandum of the then estimate of the value of the estimated
interest of Winston in the Atchison bonds, then delivered as part
of the profits of the aforesaid contract for the construction of
the Atchison branch, to be accounted for on a settlement between
the partners to such contract; . . . that the only consideration of
the note sued on was the transfer by Winston to defendant of the
interest of Winston in the Atchison bonds, as part of the profits
of the contract for the construction of the Atchison branch;"
and
"that upon a settlement of the partnership accounts between said
Winston and his partners in the contract for the construction of
said Atchison branch, the said Winston would have had no interest
in the profits of said contract, having received more than his
share thereof prior to the giving of said note."
To all of which evidence so offered plaintiff objected as
incompetent and irrelevant, and the objections were sustained by
the court, and the evidence excluded. The exclusion of the
testimony so offered is now assigned for error by the
defendant.
So far as the evidence excluded was offered in support of the
second plea, it is plain that it was inadmissible. Its purpose was
to vary and contradict by an alleged contemporaneous verbal
agreement the contract which the parties had reduced to writing. It
was offered to show that a promissory note in the usual form was
not intended by the parties to be a promissory note, but was a mere
memorandum by which the maker promised
Page 117 U. S. 586
nothing, which gave no rights to the payee, and was to all
intents and purposes vain, futile, and of no force or effect
whatever. It is not necessary to cite authority to show that the
evidence was inadmissible for such a purpose.
The counsel for defendant, not strenuously insisting that the
evidence was admissible to support the second plea, insist that it
was competent to prove the third. They argue that, as want of
consideration may be shown in defense of an action on a promissory
note, the evidence should have been received.
As a general rule, want of consideration is a defense to a
promissory note, but it is not always a defense which can be made
at law. It frequently requires the aid of a court of equity to give
it effect. The plea to support which the defendant contends the
evidence of want of consideration was admissible clearly sets up an
equitable defense. It alleges that the note sued on is based on the
"transactions relating to the business of said partners."
Referring, therefore, to the preceding plea, which states the
business of the partners, as we are authorized to do, we learn that
the partnership business had not at the time of filing the pleas,
been settled, or the interest of Winston therein or in the bonds
been ascertained. The plea under consideration further avers that
the members of the partnership were interested in the said
business, and were necessary parties to a suit relating to the
note, and that the amount due thereon, if anything, could not be
ascertained until the final settlement of the partnership. It is
plain, therefore, that the defense set up by the plea is not the
legal defense of want of consideration -- for the plea admits, by
implication, that there may be something due on the note -- but the
equitable defense that the amount due on the note, if anything, is
dependent on the amount coming to Winston from the assets of the
partnership, which cannot be ascertained without a settlement of
the partnership affairs in a suit to which all the partners are
necessary parties. And yet, having so pleaded, the defendant
insists in argument that in a trial upon the promissory note in a
court of law, and without the presence of two of the four partners,
evidence is admissible to settle the partnership and to prove,
without making Winston a party to the suit, that there is
nothing
Page 117 U. S. 587
due him out of the partnership assets. The pleading and the
contention of the defendant appear, therefore, to be contradictory
and inconsistent.
Plainly the relief, if any, to which the facts set up in this
plea entitles the defendant is an injunction to stay the suit at
law upon the note until a settlement of the partnership, and an
ascertainment of the amount, if anything, coming to Winston out of
the assets of the partnership. This is a remedy which a court of
equity only can grant. But the defendant insists on a verdict and
judgment in his favor, without settlement of the partnership on
which, as he asserts, the validity of the note depends.
Under the jurisprudence of the courts of the United States, a
court of law can no more take cognizance of an equitable defense
than a court of equity can entertain a suit upon a purely legal
title. "The Constitution of the United States," says Mr. Chief
Justice Taney in delivering judgment in the case of
Bonnett v.
Butterworth, 11 How. 669,
"in creating and defining the judicial power of the general
government, establishes this distinction between law and equity,
and a party who claims a legal title must proceed at law. . . . But
if the claim is an equitable one, he must proceed according to the
rules which this Court has prescribed regulating proceedings in
equity in the courts of the United States."
So, in
Thompson v. Railroad
Companies, 6 Wall. 134, the Court referred to
Bennett v. Butterworth and cited with approval and adopted
the following extract from the opinion in that case:
"Although the forms of proceedings and practice in the state
courts shall have been adopted in the circuit courts, yet the
adoption of the state practice must not be understood as
confounding the principles of law and equity, nor as authorizing
legal and equitable claims to be blended in one suit."
So, in the case of
Jones v.
McMasters, 20 How. 8, which was an action at law
for the recovery of the possession of land, it was held that when
the grant from the government on which the plaintiffs relied was
regular in form, it was not proper by way of defense to go behind
the survey and location; that if they were voidable for
irregularity or other cause, the question
Page 117 U. S. 588
was not one for a court of law in an action to recover
possession, but for a court of equity to reform any error or
mistake.
So, in
Foster v. Mora, 98 U. S.
425, it was said that
"in actions of ejectment in the United States courts, the strict
legal title prevails. If there are equities which would show the
right to be in another, these can only be considered on the equity
side of the federal courts."
To the same effect,
See Greer v.
Mezes, 24 How. 268;
Watkins v.
Holman, 16 Pet. 25;
Bagnell v.
Broderick, 13 Pet. 436;
Bank of
Hamilton v. Dudley, 2 Pet. 492.
See also
Peeler's Law and Equity in U.S. Courts, c. 1 and note 26, pp.
28-29.
If the defense set up in the plea under consideration could be
made effectual in an action at law, it would render obsolete in the
equity courts of the United States that great head of equity
jurisdiction under which injunctions are granted to stay
proceedings at law. "The occasion," says Mr. Justice Story,
"on which an injunction may be used to stay proceedings at law
are almost infinite in their nature and circumstances. . . . Thus
an injunction is sometimes granted to stay trial, sometimes after
verdict to stay judgment, sometimes after judgment to stay
execution, and sometimes after execution to stay the money in the
hands of the sheriff,"
etc. Story Eq.Jur. §§ 885, 886,
and see §§ 881, 882;
Eden on Injunctions, c. 2, p. 3;
Waterlow v. Bacon, L.R. 2
Eq. 514;
Hibbard v. Eastman, 47 N.H. 507;
Hopkins v.
Fletcher, 47 Mo. 331;
Tommey v. Ellis, 41 Ga.
260.
It is clear, therefore, that the matters set up in the third
plea were proper for the consideration of a court of equity, and
that they could not be set up as a defense in a court of law. All
the evidence offered to prove them was therefore properly
excluded.
It further appears from the bill of exceptions that in support
of the plea that the plaintiff had made a champertous agreement
with his counsel for the prosecution of this suit, the defendant
offered evidence which tended to prove a contract made by the
plaintiff with his counsel, George W. De Camp, by which the latter
agreed to prosecute the suit and defray all the expenses
Page 117 U. S. 589
thereof, in consideration of which he was to receive a certain
proportion of the sum recovered. The court, however, did not give
effect to this plea, and overruled a motion made by the defendant
to dismiss the action on the ground that the plaintiff had made
such champertous contract. This action of the court the defendant
assigns for error.
At common law and by statute, both in England and in many of the
United States, champerty was a criminal offense. But at the present
time, in most of the states, to aid the lawful suit of another with
money or services, in consideration of a share in the recovery, is
not considered or punished as a crime. But in many of the states,
champertous contracts are considered void. This is the case in
Missouri, where the present case was tried, the supreme court so
holding on the ground that the common law had been adopted by
statute in that state.
See Duke v. Harper, 66 Mo. 51. The
defendant now asks us to go a long step beyond this ruling.
The question raised by the present assignment of error is not
whether a champertous contract between counsel and client is void,
but whether the making of such a contract can be set up in bar of a
recovery on the cause of action to which the champertous contract
relates.
We must answer this question in the negative. It was wisely said
by the Supreme Court of New York, in the case of
Thallhimer v.
Brinckerhoff, 3 Cowen 623, that
"the right of litigation may be abused, and proper remedies for
groundless and vexatious litigation must exist; but the remedies
for the abuse of this right should be such as not to impair the
free use of the right itself. As the justice or injustice of the
claim cannot be known before the termination of the cause, the
checks upon unjust litigation must in general consist not in
excluding the suit or the suitor from the courts, but in redress
following the decision of justice upon the merits of the case."
This is an accord with the views of this Court. The precise
question under consideration was decided in the case of
Boone v.
Chiles, 10 Pet. 177. That was a bill in equity to
establish the title to a tract of 700 acres of land in Bourbon
County in the State of Kentucky. Among other defenses, it
Page 117 U. S. 590
was alleged that an agreement in writing had been made between
Boone, the plaintiff, and one Engles by which Engles undertook at
his own expense, to prosecute a suit for the seven hundred acres in
dispute, and, as a consideration for his trouble, was to have
one-half of the land, and that the suit was prosecuted under that
agreement; that it was therefore a case of champerty and
maintenance forbidden by law, in which the court could give no
relief. But the court held that although the English statutes,
which had been adopted in Kentucky, punished the offense and
declared the contract for maintenance void between the parties, the
right of the plaintiff was not forfeited by such an agreement, and
it might be asserted against the defendants whether the contract
with Engles was valid or void. The same rule has been declared in
other American cases.
Whitney v. Kirtland, 27 N.J.Eq. 333;
Robison v. Beall, 26 Ga. 17;
Allison v. Chicago &
Northwestern Railroad, 42 Ia. 274.
So, in
Hilton v. Woods, L.R. 4 Eq. 432, it was
strenuously urged that the bargain between the plaintiff and Mr.
Wright under which the suit was instituted amounted to champerty
and maintenance, and consequently disqualified the plaintiff to
sue, and that the court was bound to dismiss the bill. But the
vice-chancellor said:
"I have carefully examined all the authorities which were
referred to in support of this argument, and they clearly establish
that whenever the right of the plaintiff in respect of which he
sues is derived under a title founded on champerty or maintenance,
his suit will on that account necessarily fail. But no authority
was cited, nor have I met any, which goes the length of deciding
that when a plaintiff has an original good title to property he
becomes disqualified to sue for it by having ventured into an
improper bargain with his solicitor as to the mode of remunerating
him for his professional services in the suit or otherwise."
There was therefore a decree for the plaintiff, though without
costs.
In
Elborough v. Ayres, L.R. 10 Eq. 367, it was conceded
that the fact that the plaintiff, in an action for malicious
prosecution, had been maintained would be no bar to the action, and
the vice-chancellor held that such maintenance would be no
Page 117 U. S. 591
ground for the interference of a court of equity to prevent the
action from going on, citing Vice-chancellor Wigram in
Evans v.
Prothero.
The only cases to which we have been referred in which the rule
insisted on by the defendant has been maintained were two cases
decided in the Supreme Court of Wisconsin:
Barker v.
Barker, 14 Wis. 131, and
Allard v. Lamirande, 29 Wis.
502.
We think, therefore, that both upon reason and weight of
authority, the court did not err in refusing to give effect to the
fourth plea of the defendant or in refusing to dismiss the suit
because it was prosecuted under a champertous agreement between the
plaintiff and his counsel.
Judgment affirmed.