157 N.W. 119 | N.D. | 1916
This litigation arose in the county court of Stutsman county, and the appeal is from a judgment of that court in plaintiff’s favor for the sum of $295 and costs.
Plaintiff, a member 'of the bar of Stutsman county, sued to recover on various alleged causes of action for professional services rendered to the defendant at his request under an implied promise to pay the reasonable value thereof. All the allegations of the complaint are put in issue by the answer, and as to two of the plaintiff’s principal causes of action the answer by way of an affirmative defense alleges that the services were performed by plaintiff under an express contract entered into through plaintiff’s solicitation whereby he agreed to bring two cer
At the commencement of the trial, plaintiff moved that the defenses with reference to the special contracts and also the counterclaims for costs be stricken from the answer on. the ground that the special contracts thus pleaded were champertous and void, and did not constitute a defense, nor could they form the basis of counterclaims. Defendant conceded that if such contracts were champertous, no recovery on the counterclaims could be had, but insisted that the contracts were properly pleaded as defensive matter. The motion to strike was granted, and later the court refused to admit proof of such contracts. Such rulings form the basis of appellant’s chief assignment of error, and the only one requiring extended notice.
Plaintiff sought to recover upon the quantum meruit for these professional services, the greater portion of which was rendered, as defendant sought to plead and prove, under the special contracts aforesaid. Plaintiff having been successful in inducing the trial court to sustain his motion upon the grounds, as stated in his'brief, “that such a contract, if made, would be champertous and illegal and contrary to public policy, it must be assumed on this appeal that such contracts were in fact entered into, and that defendant, if permitted to do so, could and would have shown that the services were performed by
The question fairly presented, therefore, is whether proof that the services sued for were performed under such concededly illegal contract which was void as against public policy would defeat plaintiff’s right to recovery for such services under a quantum meruit. Plaintiff ■concedes that if such a contract had been made with respect to promoting a divorce suit, or with respect to doing any other act which in and of itself contravened public policy, no-recovery could be had for ■such services either on contract or quantwn meruit, but he attempts to ■distinguish the case at bar upon the grounds, as we understand his argument, that the services contracted for were not in themselves illegal or in contravention of public policy, and that while the contract is void and cannot be enforced, the law permits a recovery on a quantum meruit for the reasonable value of the services. Citing: Barngrover v. Pettigrew, 128 Iowa, 533, 2 L.R.A.(N.S.) 260, 111 Am. St. Rep. 206, 104 N. W. 904; Davis v. Webber, 66 Ark. 190, 45 L.R.A. 196, 74 Am. St. Rep. 81, 49 S. W. 822; Gammons v. Johnson, 69 Minn. 488, 72 N. W. 563; Potter v. Ajax Min. Co. 22 Utah, 273, 61 Pac. 999; Husbands v. Cook, 24 Ky. L. Rep. 1320, 71 S. W. 508; Stearns v. Felker, 28. Wis. 594; Thurston v. Percival, 1 Pick. 415; Rust v. Larue, 4 Litt. (Ky.) 412, 14 Am. Dec. 172; Lynde v. Lynde, 64 N. J. Eq. 736, 58 L.R.A. 471, 97 Am. St. Rep. 692, 52 Atl. 694; Brush v. Carbondale, 229 Ill. 144, 82 N. E. 252, 11 Ann. Cas. 121.
Whether the distinction sought to be pointed out by plaintiff is sound, we, for reasons hereafter stated, need not determine. Concededly, there is some diversity in the holdings of the courts of the -country upon that question. Counsel for appellant have, with much
However, as before stated, it is unnecessary for us to decide such questions on this appeal, and we shall not do so. Y^e are entirely clear that in any event it was prejudicial error to strike out such defenses, and we will briefly give our reasons for such conclusion. Under the terms of the special contracts as pleaded, plaintiff was to receive no compensation whatever unless he recovered in the actions, and in this he concededly failed. How then, in the light of this, can he be permitted to recover on the quantum meruit % In no case which has come to our notice has such a recovery been permitted where, as here, nothing would have been due under the special contract, if valid. The services performed by plaintiff were concededly of no actual value to defendant, therefore the rule of the cases relied on by respondent is of no avail to him. That the special contracts, although champertous
Tbis disposes of tbe first assignment in appellant’s favor, necessitating a new trial. In view of another trial we will briefly state our views as to tbe other assignments.
Assignment of error numbered 2 is without substantial merit. Even if it were necessary for plaintiff to allege nonpayment in bis complaint, no sucb question appears to have been raised in tbe lower court. Tbe defect in tbe pleading, if any, could have been readily remedied bad it been properly challenged. Tbe same is true of tbe objection that sucb complaint fails to allege that tbe services were rendered at tbe defendant’s request. Sucb alleged defects will not be considered for tbe first time in tbis court.
Assignments 3, 4, and 5 have been considered, and we deem them not well taken.
Tbe question as to tbe sufficiency of tbe evidence is argued at some length in tbe brief; but sucb question cannot be raised for tbe first time in tbe supreme court. Tbis court, in law appeals, sits merely in review of errors, and where no ruling of tbe trial court as to tbe sufficiency of tbe evidence is invoked either by motion for a directed verdict or for a new trial, there is nothing for tbis court to review. Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861.
Tbis disposes of all tbe assignments which are argued in tbe brief, and results in a reversal of tbe judgment and tbe remanding of tbe cause for a new trial. It is so ordered.