Sharon v. Sharon

Myrick, J. — Action on an agreement in writing. The agreement is in' the following words:—

“Palace Hotel, San Francisco, Nov. 7, 1880.

“I hereby agree to pay Miss S. A. Hill two hundred and fifty dollars for each and every month of the year A. D. 1883. Wm. Sharon.”

The defendant admitted the execution and delivery of the writing to plaintiff, and that he had not paid the installments alleged to be due for October, November, and December, 1883; and averred that (to induce plaintiff to desist from making unwelcome visits and annoying and disturbing him in his rooms, and on the consideration that she would cease to disturb or annoy him, or make any de[30]mouds upon him, he promised to pay her seven thousand five hundred dollars, and in pursuance of that promise he paid her three thousand dollars, gave her his note for fifteen hundred dollars, which has been paid, and gave her the paper set out in the complaint.) The answer contains the statement that the defendant “ denies that there ever was any consideration for the note ” sued on.

The case comes up on the judgment roll, without the evidence. The court found: —

■ “ That said instrument was given by defendant to the I plaintiff in consideration of past illicit intercourse be- i tween them, and also in consideration of a promise then > and there made by plaintiff to defendant to make no fur- ^ ther demand upon defendant, and not to further annoy ) him in any manner, and also in consideration of the fol- , lowing instrument in writing: — ■

“‘Received of William Sharon seven thousand five hundred dollars, in full of all claims and demands of every name, nature, and character. S. A. Hill.’ ”

The defendant, on this appeal, presents the point that,' as the court found a portion of the consideration to be ‘ past illicit cohabitation, the entire contract is void under 1 sections 1607, 1667, and 1608, Civil Code; and after ’ claiming that the illegality of the consideration was suf-1 ficiently pleaded by the denial of any consideration, cites , Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261, as authority that the defense need not be specially pleaded, but could be interposed under the general issue.

It doubtless has been and is the rule, that a contract ¡ in consideration of future illicit cohabitation is void. It t seems to have been the rule formerly, that a contract, , under seal, for past illicit cohabitation, could not for that reason be avoided; but that a written contract, not under seal, could be avoided. The distinction may perhaps have been done away with by the code.