112 Va. 352 | Va. | 1911
delivered the opinion of the court.
George B. Stone, administrator of Bernard P. Green, deceased, and Frank D. Wynn, administrator of John A. Parker, deceased, filed their petition in the Circuit Court of the city of Richmond, pursuant to sections 746 and 747 of the Code of 1904, against Morton Marye, Auditor of Public Accounts, in which it is claimed that the Commonwealth of Virginia is indebted to the petitioners’ intestates in the sum of $172,358.26, with interest thereon from the-day of April, 1903, being ten per cent, of $1,723,582.63, which it is alleged was collected by the Commonwealth of Virginia on account of advances made by Virginia to the United States government for aid in carrying on the war with Great Britain, beginning in the year 1812.
The cause was heard before the circuit court upon said petition, the demurrer and answer of the Auditor of Public Accounts thereto and the evidence. Whereupon, the judgment to which this writ of error was awarded was entered, denying the relief asked by the petitioners and dismissing their petition, with costs to the Commonwealth.
In the view that we take of the case, it is immaterial whether the proceeding is to be regarded as one at law or in equity; or whether the evidence has been incorporated into the record by a proper bill of exceptions or not; or whether the alleged agency of petitioners’ intestates was joint or several; or whether the alleged contract upon which this action is brought should be construed to be a contract for procuring legislation, and, therefore, void as contra bonos mores.
Coming to the consideration of the case upon its merits, it appears that during the war with Great Britain, beginning, as above mentioned, in 1812, Virginia and other States of the Union advanced to the United States government certain moneys for military purposes, which the
Prior to the adoption of the resolution of February 10, 1860, supra, to-wit, in 1858, the Commonwealth of Virginia became indebted to the United States government upon certain bonds or certificates of indebtedness of Virginia ob
Thomas Green died about the year 1877, and on March 12, 1884, an act of the General Assembly was passed which provided, “That Bernard P. Green is hereby appointed in the place of the said Thomas Green (his father), deceased, to prosecute, in association with the said John A. Parker, to settlement, the said claims of the State of Virginia against the United States, upon the terms and conditions specified by the act or acts creating the said Thomas Green and John A. Parker agents as aforesaid, except so far as the said terms are in conflict with this act.”
(2) “That the Treasurer of the State is hereby authorized and directed to pay to Bernard P. Green and John A. Parker, jointly, and upon their receipts, ten per centum of any sum or sums appropriated by the Congress of the United States for the payment of said claims, and paid to the State for amount due from the United States.”
John A. Parker died in 1835, and Bernard P. Green in September, 1302.
On the 14th of November, 1899, Green made a report to the governor of Virginia, in which he gave a statement of the efforts that had been made by him and his associate, Parker, to recover the several amounts claimed as due from the United States to Virginia, and said: “Our claim, of course, as it now stands, is not recognized by the treasury; and, therefore, if the United States should ever owe Virginia for anything, past or future, nothing will be paid her
Whatever may have been the reasons for the change in the amount of commissions to be allowed on any sum or sums recovered by Green and Parker from three per cent., which had been originally provided, to ten per cent., as fixed by the act of March 12, 1884, it was bound to have been understood by all concerned, and especially by Green and Parker who were conversant with the situation, that in any settlement made of the claims of Virginia against the United States, the latter would be entitled to have taken into account the indebtedness of Virginia to the United States upon the bonds referred to in the report of Green in 1899, supra. It is very true that when the act of March 12, 1884, was passed the bonds of the State of Virginia held by the United States, upon their face, did not become due till 1894, but the interest thereon was payable annually and had not been paid since 1861. Certainly nothing had been accomplished by Green and Parker when said bonds became payable in 1894, nor by Green after Parker’s death in 1895, for the latter’s report to the governor in 1899 admits of no other construction than that all his efforts had proven fruitless, and that nothing had been accomplished by any agency or efforts that had been put forth by himself, or by his father, or by Parker, who had from time to time been representing the State; indeed, the long and earnest efforts of our representatives in Congress to secure by act of Congress a settlement of the claims of Virginia against the United States had at that time been of no avail.
The proof in the record is conclusive that the plan for the settlement of this controversy, authorized by the said act of Congress, was conceived and the final settlement
As we have seen, this action is founded upon an alleged contract between the Commonwealth of Virginia and Bernard P. Green and John A. Parker, arising out of the act of the General Assembly, approved March 12, 1884, whereby it is claimed that Green and Parker became entitled to ten per cent, commissions on the full amount of the claim that Virginia was asserting against the United States government, without deducting therefrom the amount of the bonds and interest owdng by the State which were then held by the United States; and such is the claim asserted in this action by plaintiffs in error, notwithstanding it was, as has been observed, known of all parties interested, ineluding plaintiffs in error’s intestates, when said act of March 12, 1884, was passed, that the United States held the said bonds against the State. of Virginia. And it must of necessity have been also known by all parties interested that Virginia was relying upon the cancellation of these bonds as a payment pro tanto of the claims she held against the United States.
Aside, however, from this view of the case, let us see what, if anything, was done by Green and Parker pursuant to the said act of March 12, 1884, which entitled plaintiffs in error to a recovery upon the claim they are here asserting. Certainly nothing was done by Green and Parker up to the death of the latter in 1895, and nothing by Green up to the date of his report to the Governor of Virginia in November, 1899, for he distinctly says, that
We are unable to appreciate the force of the argument of the learned counsel for plaintiffs in error, that if Green and Parker were diligent in trying to effect a settlement of Virginia’s claim, they were entitled to their commissions thereon, whether or not their efforts brought about a settlement of the claim, or it was accomplished by some other agency; nor do we (for the reasons already given) recognize any force in the argument that when Virginia admitted the validity of her obligation held by the United States, and agreed that it should be treated as an offset against the.claim which she had contracted with Green and Parker to prosecute, and thereby put it beyond the power of said agents to effect a settlement upon any other basis, said agents were nevertheless entitled to their commissions on the aggregate amount for which Virginia was given credit in the settlement of her claim under the act of Congress of May 27, 1902.
It may be, as counsel contend, that “If one contracting party can show that the other prevented his performance, it is to be taken as prima facie true that he would have
. The principle of law with respect to the right of an agent to compensation for his services, applicable here, is the same as that which applies to agencies of like character, generally, viz: that where the agent assumes to do a specified act, until the specified act is performed or substantially performed (except in exceptional circumstances, none of which apply here) no right to compensation arises to the agent. The agency must be fully completed. Mechem on Agency, sections 610, 635, 682; Crockett v. Grayson, 98 Va. 354, 36 S. E. 477; Parker v. Building & Loan Asso., 55 W. Va. 135, 46 S. E. 811; 1 A. & E. Ency. of L., 1101, 1111, and cases cited.
We do not intend by anything said in this opinion to dis
There is no error in the judgment of the circuit court complained of and, therefore, it is affirmed.
Affirmed.