Bowyer

Plaintiff appeals from a judgment in favor of defendants and respondents Waliga in an action to recover approximately $5,000. The only basis for recovery against these respondents was the following agreement in writing:

The evidence showed that James Burgess had been employed as a route salesman by plaintiff doing business under the fictitious name of Bastanchury Water Company, that said Burgess had kept for himself and not paid over to plaintiff a portion of the money which he had collected for plaintiff, and that when this shortage was discovered negotiations were engaged in which resulted in the execution of the quoted contract upon which this action is based.

Respondents defended on the ground that the agreement was illegal and void, being a contract not to prosecute the said Burgess for a crime. The parol evidence was conflicting, plaintiff and another witness testifying that in the negotiations there was no discussion of a criminal prosecution and that plaintiff’s only interest was in recovering the money shortage and the possible institution of a civil action for that purpose. Defendant Andrew Waliga, however, testified that plaintiff stated that he would institute…