90 So. 279 | Ala. | 1921
This cause has been before this court on an appeal from a ruling on demurrer to the amended bill. Anderson et al. v. Blair,
"(1) The alleged agreement between complainants (appellants) and defendant (appellee) was void as against public policy; and (2) said agreement was so indefinite in one of its terms as to be incapable of enforcement by judicial process."
"On the facts alleged in the bill," these propositions were resolved against defendant, Blair, their proponent, and the decree sustaining the demurrer pointing them was, in consequence, reversed.
Following reversal the bill was further amended to draw within its theory and scope other later constructions by the government, through Blair as contractor, and issues were formulated asserting the respective contentions of the parties in the premises. Upon consideration of the voluminous evidence the court denied relief and dismissed the bill. The appeal is hence from that character of final decree.
In brief for appellee it is vigorously insisted that the evidence discloses a contract (if such there in fact was) affected with illegality because opposed to public policy, and that the conclusion in that particular on former appeal, from a ruling on demurrer, confined, as it necessarily was, to the "facts alleged in the bill," is not authoritative or influential with respect to the different status shown by the evidence on which the cause was submitted. On this appeal it is not essential to a proper disposition that the stated insistence should be considered, much less that it be affirmed to be unfounded, in view of the facts and circumstances now more fully developed by the evidence, as distinguished from the allegations of the amended bill. The pretermission of this insistence also comprehends the want of necessity now to consider whether this question of offense vel non to public policy is a federal or local inquiry; the New York courts affirming in general terms that it involves no federal question, and so, notwithstanding the doubt, at least, that principles applicable to the relation of principal and agent might interject a factor against or among joint adventurers (partners in a sense) contracting with the government through the means and medium of their joint adventurer, even though the government should be unaware of the interest or relation of those who claim in virtue of a contract made between their secret associate and the government.
The presently material elements of the contract averred in the amended bill are sufficiently recited in the report on former appeal.
"The contract contemplated that the government would deal with appellee [i. e., Blair], alone, but appellants were to assist in its execution. * * *"
As defined in the averments of the amended bill, the agreement's intended effect was to constitute Blair the alter ego, the representative in a distinct sense, of the complainants and himself in the contract to be secured from the government, and to assume for those Blair is alleged to have represented the obligation to perform the anticipated engagement with the government.
The cause has been considered upon the controlling issues of fact litigated by the respective parties; this, too, without regard to the at least doubtful right of the complainants, under the contract averred, to tender the but partial issue restrictedly predicated of their claim of right to a share or *420 shares of the "profits" collected by Blair. A vital element of the controlling issue is whether Blair had obligated himself either to satisfy the complainants in respect of the proportion of the "profits" each (with Blair) should receive — a division that was to be effected promptly upon the awarding or signature of the government's contract with Blair — or, failing accord in that respect, that Messrs. Cramton and Joseph, as arbitrators, should determine the proportionate percentages or parts each (with Blair) should receive. This arbitral method of affording the certainty and definiteness requisite to a binding engagement between the parties was approved on former appeal of the cause. Blair contended that the whole matter of compensation vel non of complainants was left to his unlimited discretion, without obligation on him to pay to complainants or to share with them in the "profits" of the execution of the government's contract, or to submit to arbitral settlement the proportioning thereof — an unlimited discretion of like character and extent that it is conceded in the brief for appellants Blair was accorded in respect of participation vel non by these complainants in the performance of the contract the government consummated with Blair. If Blair's view of what took place, in this contractual particular, between complainants and himself, is the better supported in the whole evidence bearing on this important phase of the issue, then Blair was neither legally nor morally at fault in declining to recognize the right of these complainants to demand or to receive any part of the compensation paid him by the government or in refusing to submit the matter of asserted apportionment to arbitration.
A great volume of testimony and written evidence has been presented by which this issue must be solved. The oral and written arguments thereon by the respective solicitors have been most exhaustive, omitting no circumstances, conclusion, or deduction that could contribute to its solution or avert an unsound acceptance of any evidential factor that might deflect the judgment. The court has given the cause a very careful consideration — a review aided, inestimably, by the efforts of counsel. After and upon such consideration the conclusion of this court accords with that attained and given effect by the circuit court in equity. A discussion of the evidence bearing on the issue indicated will not be attempted. To do so would involve a valueless recital of well-nigh interminable length and a rehearsal of argument, criticism, deduction, and conclusions that would serve no possible immediate or future purpose.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
