dissenting:
I dissent.
I disagree with that part of the majority opinion which reverses the lower court. I agree with the proposition that a contract made by a witness who testified for a consideration which is contingent upon the outcome of litigation is void as against public policy. However, where that witness is otherwise interested in the result of the litigation; where the witness has a legitimate and otherwise potentially valid claim pertaining to the subject matter of the litigation which he also gives up, there is sufficient consideration to support an enforceable contract.
It is true that Mr. Kellar’s testimony was given for a consideration which was, in part, contingent on the outcome of the taxicab proceedings. In addition to that, Mr. Kellar agreed to forbear asserting a claim of right. I do not believe this contract is against public policy because the policy considerations are absent in such a case.
I do not think perjury is promoted any more in this case than testimony which is the result of a compromise of a divorce case or any other compromise litigation between the parties.
When one testifies for a consideration, at least three possibilities arise with respect to that person’s status toward the litigation.
If the person has no independent interest in the subject matter, nor the outcome of the proceedings, he is a stranger to the litigation and perhaps the general rule would apply. But one may be an adverse party to the proceedings or one may stand *246to gain or lose rights as a result of the proceedings and thus be an “interested witness.” In these cases, the fact that part of the consideration itself may have illegal aspects won’t defeat the agreement. There is ample authority for this proposition of law. Johnson v. Country Life Insurance Co., 300 N.E.2d 11 (1973); Schara v. Thiede, 206 N.W.2d 129 (1973); Ingle v. Perkins, 510 P.2d 480 (1973); Wilson v. Maryland Cas. Co., 269 So.2d 562 (1972); Seufert v. Greenfield, 496 P.2d 197 (1972); River Garden Farms v. Superior Court, 103 Cal.Rptr. 498, 26 Cal.App.3d 986 (1972); Willcher v. Willcher, 294 A.2d 486 (1972); Ferro v. Bologna, 334 N.Y.S.2d 856, 286 N.E.2d 244 (1972); Sealy Mattress Co. v. Sealy, Inc., 346 F.Supp. 353 (1972); Cox v. Hope, 498 S.W.2d 436 (1973); Thatcher v. Darr, 199 P. 938; Dodge v. Stiles, 26 Conn. 463 (1857).
I believe there was substantial evidence to conclude that part of the consideration for the July 16, 1970 contract was good faith forbearance to assert a prior existing disputed claim. If this were the case, the agreement would be valid and enforceable. For example, at the time of the agreement in Western Cab Company in question, Kellar or his wife were stockholders of record and had been notified of the proceedings before the Taxicab Authority.
The majority’s view that Kellar’s only interest was created by the contract itself amounts to a substitution of its view of the evidence for that of the trial court. This violates the proposition, used by the majority opinion, that a trial court’s finding, if supported by substantial evidence in the record, will not be disturbed on appeal. Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
The majority opinion concludes that Kellar’s only interest in the outcome of the litigation was created by the July 16 contract, which they say is illegal. Yet they also say that “whatever prior interest Kellar may have had in the outcome of the application before the Taxicab Authority, it was superseded by the July 16 agreement promising payment in the event of approval.” This is confusing to me because it appears to make the agreement both valid and invalid in order to support the conclusion reached. If the July 16 agreement superseded any prior interest, and I agree it did, it must have been supported by good and sufficient consideration otherwise it would not be enforceable.
I would affirm the lower court because its conclusion is supported by substantial evidence in the record and sound legal theory.