
    DAVIS-DELCAMBRE MOTORS, INC., Plaintiff-Appellee, v. Martin SIMON, Defendant-Appellant.
    No. 833.
    Court of Appeal of Louisiana. Third Circuit.
    June 18, 1963.
    Behearing Denied July 9, 1963.
    
      Willis & Willis, by J. B. Willis, St. Mar-tinville, for defendant-appellant.
    Marion W. Groner, New Iberia, for defendant-appellee.
   FRUGÉ, Judge.

The plaintiff, Davis-Delcambre Motors, Inc., sued the defendant, Martin Simon, on his promissory note dated June 14, 1957 in the amount of $300.00. Defendant, by special plea, raised the defense of illegal consideration as a bar to collection on the note. From a judgment in the lower court granting plaintiff the relief prayed for, defendant has appealed.

The record discloses that during the first week of June 1957, Wilmer Mitchel purchased a 1952 Chevrolet automobile from the plaintiff. The sale of the automobile was to be a cash transaction. Pursuant to this sale, Mitchel gave plaintiff two checks, in the amounts of $200 and $100, drawn on the State National Bank of New Iberia. Plaintiff attempted to cash these checks at the named bank but was informed that Wilmer Mitchel had no account. Accordingly, payment was refused. About one week later plaintiff contacted Wilmer Mitchel and threatened to have him arrested for issuing worthless checks. Subsequently Martin Simon, Mitchel’s employer, issued a promissory note in the exact amount of the worthless checks.

In urging lack of valid consideration, defendant argues that the note was given for an illegal consideration in that the only reason the note was given was plaintiff’s forbearance in the prosecution of Mitchel for issuing worthless checks. Plaintiff, on the other hand, argues that the note was given in payment of the debt owed by Mitchel to plaintiff, and that as such was supported by good and valid consideration. In addition, plaintiff objects to the defense of lack of valid consideration, since defendant did not raise this issue by way of answer.

Concerning defendant’s pleading of the affirmative defense of lack of valid consideration, LSA-C.C.P. Art. 1005 provides :

“The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, ex-tinguishment of the obligation in any manner, failure of consideration * * *, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

The obvious purpose of this article is to give fair notice of the nature of a defense, thus preventing surprise on the part of the petitioner. However, notwithstanding Article 1005, it seems well established that the issues of a case may be enlarged by evidence adduced without objection. Thus LSA-C.C.P. Art. 1154 provides:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of. the action-will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

In the instant case, although defendant did not specify by way of answer that he was attacking the validity of the note sued upon by alleging an illegal consideration, this issue was tried without any objection on the part of plaintiff. Under Article 1154, this issue was, therefore, properly before the trial court and merits our consideration on appeal. See Norman v. City of Shreveport, La.App., 141 So.2d 903.

Counsel for defendant argues that the consideration for the note at issue was the debt of Wilmer Mitchel, and that the payment of a debt of a third person is valid consideration. In our opinion, counsel has correctly stated the law in this regard. Dauzat v. Bordelon, La.App., 145 So.2d 41; Foster & Glassell Co. v. Harrison, 168 La. 500, 122 So. 595. However, viewing the evidence and testimony as a whole we are convinced that the payment of the debt of Wilmer Mitchel was not the cause which motivated defendant to make the note. Thus, Mr. Earl J. Davis, President and General Manager of Davis-Del-cambre Motors, when questioned about the circumstances surrounding the making of the note, testified as follows:

"He [Wilmer Mitchel] gave us two checks, one dated that day, and the other check dated for a week to follow. Monday morning we go to the bank to cash his check, and the check was no good, no account. And we got a hold of Mitchel, and he promised to make the checks good. And it was sometimes, oh, possibly a week or two weeks later before we was able to contact him again. He was working for Martin Simon. And Simon came in one afternoon and said that he was going to sign that check for Mitchel, rather, sign the note to clear Mitchel, because I was threatening to have him locked in jaÁl for giving me bad checks.” (Tr. 57) (Emphasis added.)
H* * • * * * *
"Q. Well, if Martin Simon had not given you the note, as you say you would have had Red picked up and put in jail on criminal charges.
“A. That’s right, Wilmer T. Mitchel, ‘Red’ Mitchel.
“Q. You would have had him picked up and put in j ail ?
“A. Yes, sir.
“Q. And you would have filed a criminal charge of bad checks, is that right P
“A. Yes, sir.” (Tr. 60)
The only realistic conclusion that can be drawn from the testimony of Mr. Davis is that defendant gave the note in question in consideration of plaintiff’s forbearance to prosecute Wilmer Mitchel for issuing worthless checks. Accordingly, we SO' hold.

Having determined the cause or consideration for defendant’s making the note, we now turn to the question of whether such consideration is legal and valid.

All contracts which have as their object that which is forbidden by law or contrary to good morals are void. LSA-C.C. Art. 1892. By the "cause” of a contract is meant the motive or consideration for making it. LSA-C.C. Art. 1896. “The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order,” LSA-C.C. Art. 1895. Accordingly, it has been held that the promise of a father to pay the debt of his insolvent son in exchange for the creditor’s promise not to prosecute for fraud is without a good consideration and void, as against public policy. Field v. Rogers, 26 La.Ann. 574; Perry v. Frilot, 6 Mart.(N.S.) 217; Leggett v. Pett, 1 La. 288, 297. Similarly, the courts have refused to enforce promises to pay gambling debts. Wilson v. Sawyer, La. App., 106 So.2d 831.

As previously stated, the obvious consideration for the note in question was the forbearance to prosecute Mitchel for issuing a worthless check. We need not enter into any detailed discussion that such an act is a crime. See LSA-R.S. 14:71. In our opinion, it is axiomatic that the promise to suppress the prosecution of this crime is contra bonos mores and results in rendering the note sued upon void for lack of consideration. In reaching this conclusion, we are mindful of plaintiff’s argument that R.S. 14:71 requires an intent to defraud and that such intent on the part of Mitchel was not established on the trial of this case. However, as stated by the court in Perry v. Frilot, supra, 6 Mart. (N.S.) at 219, concerning this same contention :

“The evidence does not show whether the conduct of the son was fraudulent or not. But the want of proof on this head cannot affect the conclusion to which our duty requires us to come. If it was not fraudulent, the plaintiff practiced a gross fraud and deception on the defendant. If it was fraudulent, he cannot make the promise'to conceal that fraud the basis of an action in a court of justice.”

The above quotation adequately expresses the views of this court on the matter.

For the reasons assigned, the judgment of the lower court is reversed and plaintiff’s suit is dismissed; plaintiff-appellee to pay all costs of this appeal and of these proceedings.

Reversed.

HOOD, Judge

(dissenting).

I cannot agree with the conclusion reached by the majority that defendant Simon executed the note on which this suit is based “in consideration of plaintiff’s forbearance to prosecute Wilmer Mitchel for issuing worthless checks.” Simon, himself, testified at the trial that at the time he executed and delivered the note he did not know that Mitchel had signed any checks in favor of Davis and that he knew nothing about the possibility that Mitchel might have to go to jail. His testimony to that effect is as follows:

“Q. Now, was Mitchel in any sort of trouble with Mr. Davis, do you know, at that time?
“A. Not that I know, no, sir.
“Q. Do you know about any checks that Mitchel had signed to Mr. Davis ?
“A. No, sir. Mr. Davis never tell me nothing about no checks.
“Q. Did Mitchel talk to you about his checks ?
“A. No, sir.
“Q. Did he talk to you about he might have to go to jail?
“A. No, sir.
“Q. Did you know that he might have to go to jail and he wouldn’t be able to work for you ?
“A. No, sir, I didn’t know that.”

So far as I can find in the .record, the only grounds upon which the majority can base its holding that there was an agreement to not prosecute are the statements volunteered by plaintiff’s general manager, Mr. Earl J. Davis, which are quoted in the majority opinion. I find nothing in his testimony which indicates a promise on his part to not prosecute Mitchel. The only logical interpretation which can be placed on the evidence, I think, is that although Davis intended to prosecute Mitchel if the checks were not paid, and he may have said that to Mitchel, defendant Simon was never informed of any such intent or even of the possibility that charges could be filed and no promise was ever made by Davis to Simon or to anyone else to not prosecute Mitchel.

The majority has held that the agreement between Mr. Davis and Mr. Simon is “unlawful,” and is “forbidden by law,” and “is a crime.” Although the specific crime which the majority thinks has been committed is not set out in the opinion, it is apparent that they feel that both of these men, by conducting this very ordinary and common business transaction, have committed the serious crime of compounding a felony, as prohibited by LSA-R.S, 14:131. I strongly disagree. In the first place, I think it must be shown that a felony has been committed before an accused can be guilty of compounding it, and there is no showing here that a felony was committed by Mitchel. One of the elements of the offense of issuing a worthless check, as provided in LSA-R.S. 14:71, is an “intent to defraud.” No 10-day written notice of non-payment was given to Mitchel, so there is no presumption of an intent to defraud, and I think the majority is in error in assuming that Mitchel had committed a felony which could be compounded.

I agree with the majority that if the only consideration for a promissory note is a promise of the payee not to prosecute, then the obligation evidenced by the note is unenforceable because of a failure of consideration, whether there was or was not a valid ground for criminal prosecution. But, in a case such as the instant one, where there was a valid consideration for the note (a stipulation pour autri), then it seems to me that the note is enforceable although there may have been additional promises or considerations which were invalid, such as a promise to .not prosecute.

The majority apparently relies principally on the case of Perry v. Frilot, 6 Mart. (N.S.) 217, as authority for its holding. In my opinion that case does not support the views expressed by the majority in the instant suit, because there the son was an insolvent debtor, and the plaintiff had agreed as a part of the consideration for the father’s promise to pay a portion of the debt that plaintiff would “get the other creditors to sign; that is, that he would deceive them,” and would assist the son in fraudulently making a surrender of his effects. The Perry case was decided in 1827, and so far as I have been able to. find it has never been cited or followed by any other court since that time. If it can be interpreted as supporting the views expressed by the majority in the instant suit, then I must respectfully disagree with the holding in that case.

Also, I disagree with the majority in its holding that the defendant may now avoid payment of the note on the special defense of “failure of consideration,” in spite of the fact that such an affirmative defense was not set forth in an answer filed by the defendant, as required by LSA-C.C.P. Article 1005. While I am aware of the provisions of LSA-C.C.P. Article 1154, I do not think that article is applicable here because this entirely new issue, not raised by the pleadings, was not “tried by express or implied consent of the parties.”

In this case, no answer was ever filed by the defendant. The case came up for trial on March 19, 1962, on an exception of non-joinder of parties plaintiff and an exception of no right of action which had been filed by defendant. The sole basis for the exception of no right of action was defendant’s allegation that the signature of defendant on the note was a forgery. The exception of non-joinder was satisfied, and at the trial plaintiff proved the signature of defendant. During the course of the trial, however, plaintiff Davis made the statements which are quoted in the majority opinion. These statements, volunteered by Davis, were not made in response to specific questions for that information. And, although counsel for plaintiff did not promptly object to these statements made by his own client, he did counter with the positive testimony of defendant himself, Simon, that he did not know of any checks issued by Mitchel or any possibility that he might have to go to jail. Eleven days after the trial had been completed defendant then filed another exception of no .right and no cause of action alleging for the first time failure of consideration.

On this evidence and under these circumstances the trial judge rendered judgment on the merits in favor of plaintiff. While no issue is raised as to the validity of the judgment rendered on the merits before an answer was filed, it seems to me that the majority clearly is in error in concluding that defendant is entitled to avoid payment of the note on a special defense of failure of consideration under the circumstances presented here, and especially since such a defense had not been raised by any pleading’s at the time of the trial.

For the reasons herein assigned, I respectfully dissent from the views expressed by my conscientious colleagues.

On Application for Rehearing.

En Banc. Rehearing denied.

HOOD, J., is of the opinion that a rehearing should be granted.  