56 Kan. 532 | Kan. | 1896
The opinion of the court was delivered by
: The principal contention is that neither the petition nor the testimony offered in behalf of Botsford and Smith justifies a recovery. In the latter part of December, 1886, C. E. Squires, the authorized agent of the paving company, employed Botsford, an attorney at law, to represent the company at Atchison, and he continued in the service of the company until March, 1887, when Smith joined him in the work. Soon afterward a definite contract was made between them and the company, as shown by the letters of proposal and acceptance heretofore stated. In pursuance of his employment, Botsford investigated the statutes of the state with reference to grading and paving streets in cities of the first class, as well as the ordinances of the city of Atchison concerning the same subject. Shortly afterward changes were made in the statute, as well as in the ordinances, and he gave advice to the company in regard to the condition of the law and the steps necessary to be taken in the premises. The testimony is that, when first employed, Botsford and Smith studied the character of asphaltum, and acquainted themselves with the relative merits of the different kinds of paving proposed to be used in Atchison. They secured and distributed literature advocating the advantages of asphaltum over other paving materials. Under the law, the grading and
It is contended that the agreement alleged and proven was contrary to public policy, and void. An examination of the terms of the agreement does not indicate that any corrupt or improper influences were to be used, nor that the plaintiffs below agreed or were expected to use any secret or sinister means to effect the object of their employment. It is true that the compensation was a contingent one, but under the rule which obtains in this state the mere fact that the compensation is contingent will not render the agreement invalid nor bring the parties within the condemnation of the law. (Aultman v. Waddle, 40 Kan. 195.)
Attention is called to the provision in the letter of acceptance where the plaintiffs below state that they are not to reimburse the company “for moneys expended for advertising or otherwise prior to securing work,” étc., and it is contended that the words “or otherwise” refer to some illegitimate means. We cannot assume that parties were contemplating corrupt and underhanded practices, nor presume that a contract is illegal. To accomplish the work in which they were engaged money could be legally expended and honest means employed. In K. P. Rly. Co. v. McCoy, 8 Kan. 538, it was held that “money may be
“There is no presumption that a contract is illegal. He who denies his liability under a contract which he admits having made must make the fact of its illegality apparent. The burden of showing it wrong is upon him who seeks to deny his obligation thereon. The presumption is in favor of innocence, and the taint of wrong is matter of defense.”
In several respects there is a sharp conflict in the testimony, but this has been settled by a verdict of the jury, which the trial court has approved, and the dispute as to the facts is thereby ended.
No error was committed in refusing the instructions requested by the company, nor do we find anything substantial in the objections made to those that were given.
The judgment of the district court will be affirmed.