¶1 (dissenting).
¶2 I concur in the conclusion reached in the majority opinion that the provisions contained in the second paragraph of the contract are unenforceable, and that thereby the contract becomes void, as against public policy, if the terms of the contract are such that the consideration moving from appellee to appellant as contained in said second paragraph may not be rejected, and yet leave a contract with all the essentials to make it valid. As it seems to the writer, the only consideration moving from appellant to appellee was the promise of the former to pool his 20 shares of stock with the stock owned by Capps and Armstrong. In consideration of his doing this, appellant stipulated that appellee should do or promise to do certain things, to wit:
¶3*900 First. Capps must convince Mm that by such pooling oí stock more than 50 per cent, of the entire outstanding of the company’s stock would be represented.
¶4 Second. That he (Funkhouser) was to have with said company a position of emolument and authority.
¶5 Third. That in the event of the discontinuance of his services, Funkhouser was to receive from Capps three times the par value of the stock held by the former. .
¶6 Fourth. That in the event of the sale of the controlling interest in the Record Company, he was to receive one-fifth of the proceeds of such sale, after deducting the price of the stock held by appellee, Mr. Armstrong, and appellant.
¶7 If we eliminate the consideration moving to Funkhouser as set forth in the said second paragraph entirely, we still have left the full consideration moving to appellee, and a sufficient consideration moving to appellant. In Haswell v. Blake, supra, the Court of Civil Appeals, Fifth District of Texas, cites with approval the following language by the Supreme Court of Iowa in the case of Osgood v. Bauder, 75 Iowa, 550, 39 N. W. 887, 1 L. R. A. 655:
“If one of two considerations of a promise be void merely, the other will support the promise, but that if one of two considerations be unlawful, the promise is void.”
¶8 It is not contended by appellee, nor is it held by the majority of this court, that the consideration set forth in said second paragraph. is unlawful, but that at most it is merely void and nonenforceable. There is nothing in the contract that would justify the conclusion that any consideration inured to appellee by virtue of the stipulations contained in said second paragraph. The consideration is all moving to appellant, and he demands, as one of the prerequisites to his promise to do the one thing demanded of him, that appellee insure him this position clothed with the authority mentioned. That appellant could have waived entirely this requirement, without in any way affecting the consideration inuring to appellee, it is believed is apparent. There is nothing in the terms of the contract that justify, in my opinion, the conclusion that appellee attached any importance to appellant’s taking the position with the Record Company, and the tenure of said position was left entirely discretionary with either party, while appellant did attach importance to said position, and especially as to the authority with which he would be endued while he so held it. But it is evident that the main consideration in favor of appellant, as stipulated by him, was the pecuniary advantage to be derived in the sale of his stock at a stated valuation, in the event of the discontinuance of his services with said company.
¶9 That the considerations mentioned in paragraph 2 and the one mentioned in paragraph 3 are separable, and distinct I believe to be without doubt. If so, the contract should stand, with the invalid consideration eliminated. Haswell v. Blake, supra; Railway Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467, and the cases there cited. In the last-named case the Supreme Court of Arkansas uses this language:
“But if we assume that this stipulation is void because it is contrary to public policy, it may be eliminated without affecting the remainder of the contract; for it is separate and distinct from, and independent of, the other promises of the railroad company, which are legal, and the whole contract is founded upon one lawful consideration, the services of appel-lee. If, therefore, it be illegal, it is void, and the remainder of the contract is valid; the rule in such cases being that ‘where the consideration is tainted by no illegality, but some of the promises … are illegal, the illegality of those which are bad does not communicate itself to or contaminate those which are good, except where, in consequence of some peculiarity in the contract, its parts are inseparable or dependent upon one another.’ But appellee is not seeking to enforce the article as to arbitration (the one held to be invalid). He has abandoned that and now asks for compensation for the damages occasioned by his discharge.”
¶10 It is so in tMs case. Appellant has abandoned any claim- based upon the second paragraph, and relies upon failure of specific performance on the part of the promise of appellee as contained in the third paragraph. It is the opinion of the writer that he is entitled to a trial, upon this issue, and that the trial court erred in sustaining appellee’s general demurrer to appellant’s petition, and judgment of the trial court ought to be reversed and the cause remanded for a new trial.