56 A.D. 244 | N.Y. App. Div. | 1900
The answer which was served in this case did not plead, as a defense, that the contract was illegal or that the service to be performed thereunder was expected to be in violation of any law or repugnant to any principle of public policy. It is insisted that the failure to plead that the contract was illegal and void as being in contravention of good morals or a sound public policy, precluded, the defendant from raising such question, and, therefore, did not furnish basis for the court so to rule. It is undoubtedly the rule that a contract is not necessarily void because the enforcement of rights thereunder may be in violation of a statute. Where the statute is provided for the protection of parties and the benefit taken thereby may be waived, the defense of invalidity must be pleaded or the defendant cannot avail himself of it. (Crane v. Powell, 139 N. Y. 379 ; Matthews v. Matthews, 154 id. 288.) The rule is otherwise, however, where the general public is affected by the violation of the particular statute, or the provisions of any public law; in such case the enforcement of rights arising thereunder is or may be opposed to good morals or a sound public policy, and courts will refuse their aid to parties so contracting, and will in every instance leave them as it found them. In such a case it is not necessarily essential that the illegality be pleaded. Courts of their own motion will interfere and deny the right to any relief thereunder without
In the present case the learned court below took the view that the contract fell within the. second class of cases; that it was void as-being in contravention of a sound public policy, and for that reason the court would not lend aid to its enforcement. It is evident that if this view finds support in the testimony the learned court was clearly right, and the state of the pleadings would not be controlling of its action. This brings us to a consideration of the contract itself and the acts of the parties thereunder. It is conceded that the contract upon its face is not tainted with illegality, nor does any other infirmity appear therein. It is entitled, therefore, to find favor at the hands of the court, unless the proof of acts thereunder is sufficient to establish, as matter of law, that it was a mere cover in legal form for the performance of illegal acts, and that such was the intention of the parties when it was executed. If it was intended when the contract was executed that under it should be performed what in popular' language is called “ lobby service,” it is void and cannot be enforced. (Mills v. Mills, 40 N. Y. 543; Powers v. Skinner, 34 Vt. 274; Marshall v. Baltimore and Ohio Railroad Co., 21 U. S. Sup. Ct. Dec. 153.)
These lobby services are generally defined to mean the use of personal solicitation, the exercise of personal influence and improper or corrupt methods whereby legislative or official action is to be the product. It is not, however, the doing of the improper act which is. the sole test.. There must be the contract and intent that it shall be performed. Of course, 'the doing of the unlawful act is or may. be evidence of the intent and characterize the contract, but it is not necessarily conclusive of it. In Chesebrough v. Conover (140 N. Y. 382) the action was brought, to recover for services rendered in procuring the passage of a bill by the Legislature. The contract Was oral, and the question before the court was whether it was a . contract for the performance of lobby services. In that case resort. Was had to the acts of the plaintiff in order to determine the intent of the parties and the character of the contract. The proof given by the plaintiff upon the trial, and the bill of particulars served therein, as appears from, the record in the Court of Appeals, showed
Certainly if the contract could be sustained as a legal contract upon the evidence in the Ohesébrough case, we see no reason why a similar inference may not be drawn from the evidence in the present record. Some minds, we think, will be impressed with th'e view that the present case is stronger in its facts upon which to find a legal contract than was found present in the Ghesébrough case.
In Barry v. Capen (151 Mass. 99) the court was called upon to construe a contract under which the plaintiff was employed to appear before the street commissioners and advocate the laying, out of a street and the terms of damages, for which the defendant offered the plaintiff as compensation all that he could get awarded over $10,000. This proposition the plaintiff declined. The defendant thereupon stated, “You go and get as much as you can, and I will pay you a thousand dollars for it.” The plaintiff accepted this •offer and appeared before the commissioners. The. report in that •case does not' show just what the plaintiff did under his employment, and the record is not available. Upon the trial the court Avas asked to dismiss the complaint upon the ground that the contract
One or several illegal acts performed under it may not render the contract void. The question is, did the parties contemplate the performance of such acts by the contract which they made ? The-court will not stop to separate legal from illegal acts in order te uphold the contract in part. If the contract contemplated one illegal act which the law condemns, it will vitiate the whole, even though it also contract for perfectly legal acts. But the characterization is to be made, based upon-a consideration of all that was done. It is clearly evident, therefore, that such question must usually be one of fact, dependent upon a consideration of the contract and all that was done thereunder, and the inferences which may be properly drawn therefrom. It can only be the province of the court to determine the question when the contract, the acts done rnd all the-facts and circumstances practically admit of but one inference.
Application of these rules to the present case shows that this is not such a case. So. far as the acts of the plaintiff required that he should see the mayor and other administrative officers, it is not clearly apparent how he could proceed to lay the matter before-them except he visited them at their respective offices. That was the place where they transacted the public business, and so far as we are able to see that was the place where the plaintiff had the-right to go, and where the performance of the contract required that he should go. He had the right to present to these officers the merits of the pavement which he desired to have introduced, and. to induce, if he could, a personal inspection by such officer, not only of the pavement laid in the city of New York, but the pavement as-laid elsewhere, and if the plaintiff did no more than this with these-officers, then we are unable to see how the act was improper, much, less how it could be considered to defeat a right obtained by a contract otherwise legal. It is evident that intercourse with the aider-men stands upon a different footing and should receive more rigid scrutiny. But it is evident that, if all that was done with them waste recommend the merit of the pavement and induce examination by individual aldermen of that which had stood the test for five years, there would exist little basis for condemnation. The d'iffi
It follows that the plaintiffs exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the évent.
Van Brunt, P. J., and Ingraham, J., concurred; Patterson, J., dissented.
Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.