Same v. Same

Syllabus

Same v. Same. No. 79. 1. Where some parts of a contract are illegal while others are legal, the legal may he separated from the illegal, if there be no imputation of malum in se; and if the good part show a sufficient cause of action, it is error to sustain demurrer to the whole. 2. Where suit is brought on a contract made by a city, where the laws regulating i t require the consent of two-thirds of its electors to validate debts for borrowed money, such consent need not be averred on the plaintiff’s part. If with such sanction tho debt would be obligatory, the sanction will, primarily, be presumed. Its non-existence, if it does not exist, is matter of defence, to be shown by the defendant. 3. A contract made by a city to pay a sum of money with interest to a person who has assumed the payment of interest on some of the city’s debt, — as well interest to become due, as interest already due — is not a “borrowing of money,” but isa contract for the payment of adebtj and, as the last, will be sustained, when, if the former, it might fall within prohibitions against the city’s borrowing money except on certain terms. This suit differed both from the principal and from tho preceding case in that it was not upon bonds issued upon tho city, but was upon an instrument of writing by which the mayor and recorder of the city had entered (Feb. 7, 1859) into a contract with the same Gelpcke and others, that if they, Gelpcke and others, would pay or advance the interest due on various bond