No. 2,318.

#### PHILEMON PROST, Respondent, *v.*THOS. WALLACE MORE, Appellant.

Pleading. — Answeb.—Illegal Contbact. — Where facts showing the illegality of a contract sued upon, are sufficiently- alleged in the answer, the plaintiff cannot recover upon the pleadings, although such facts are not pleaded or insisted upon as a defence.

Void Contbact. — A contract void in part and of such a nature that the good cannot be separated from the bad, and the part which is good enforced, is an entire contract, and void.

Appeal from tbe District Court of ■ tbe Fifteenth. District, Citj and County of San Francisco.

Tbe facts are stated in tbe opinion.

*Pringle & Primgle,*for Appellant.

*Jarboe & Harrison,*for Despondent.

Temple, J.,

delivered tbe opinion of tbe Court:

Tbis suit is brought upon three promissory notes for $250 each, executed by More in favor of B. Bonnet *&*Co., by whom they were assigned to plaintiff. Tbe answer admits tbe execution of tbe notes, -but sets up that they were executed in pursuance of a contract between B. Bonnet *&*Co. and defendant, in which defendant purchased tbe tools, utensils and material of Bonnet *&*Co., used in tbe asphal-tum business, and also said business; and also,'as a part of tbe same contract, said Bonnet & Co. bound themselves in writing not to carry on tbe business in tbe city and county of San Francisco, or State of California; that the tools, utensils and materials purchased were of small value and bad been more than paid for at tbe time, tbe notes were executed, and that tbe notes were given on account of tbe contract of Bonnet *&*Co. to abstain from said business; that at tbe time of tbe assignment and delivery of tbe notes to plaintiff, be bad full notice of tbe matters set out by way of defence in tbe answer. Tbe consideration paid for tbe *348material purchased, tbe business and good will and tbe contract of Bonnet & Co., was an entire sum of $2,000.

Tbe plaintiff moved for judgment on the pleadings. Tbe motion was granted and judgment entered accordingly, and tbe defendant appeals.

Tbe contract set up in tbe answer in tbis case is tbe same contract considered by us in tbe case of *More*v. *Bonnet*at tbis term, and there held void as against public policy— being in restraint of trade. Tbe defendant in tbis action did not plead tbe illegality of tbe contract, nor does be contend that it is illegal here, probably because be was endeavoring to enforce tbe contract as valid in tbe case of *More*v. *Bonnet.*All tbe facts, however, showing tbe illegality of tbe contract, appear in tbe answer, and it further appears that tbe notes were given in part consideration of tbe illegal contract in restraint of trade. Tbe contract is evidently an entire contract, and therefore, being void in part, is entirely void and cannot be enforced. *(Roby*v. *West,*4 N. H., 290; *Crawford*v. *Morrell,*8 Johns., 253; *Mechelen*v. *Wallace,*7 Ad. & E., 49; *Thomas*v. *Williams,*10 B. & C., 671). Tbe contract is not one in which tbe good can be separated from tbe bad, and tbe part which is good enforced. There are no different valuations fixed for the merchandise, the good will, or for the covenant not to to engage in business in California.

Although these facts are not pleaded or insisted upon as a defence, still they are sufficiently alleged, and it would be manifestly unjust to hold that the defendant cannot enforce bis contract against Bonnet because of its illegality, but that Bonnet or plaintiff, who took tbe notes, charged with notice of the infirmity inherent in them, can collect tbe consideration for that illegal contract from More.

Judgment reversed and cause remanded.