30 Del. 548 | Del. Super. Ct. | 1917
*550 “In the progress of the cause and after the plaintiff had closed his case the defendants’ counsel moved a nonsuit for want of a probate. The plaintiff produced a probate which he had inadvertently neglected to offer while laying his case before the jury. The defendant insisted it was too late, but the court received the probate and refused the nonsuit. A probate is no part of the evidence and if produced when demanded in any stage of the cause it is sufficient. ’ ’
Counsel for defendants then moved for a nonsuit on the ground that the contract alleged between Todd and Higgins was null and void, being against public policy; that the line is drawn between the payment of a layman by a lawyer for services in connection with the preparation of a case, of a certain sum, and a sum contingent upon the amount recovered.
Counsel for plaintiff contended that although there would be no implied contract by reason of the services alleged to have been performed, as in an ordinary case, yet an express contract between a layman, who was interested as a party to the suit, and the counsel who represented him and others in the case, for a certain percentage of the contingent fee of counsel as compensation for services in procuring evidence, etc., was valid, and recovery could be had thereon.
delivering the opinion of the court:
The plaintiff rests his case upon an alleged contract claimed to have been made by Anthony Higgins, an attorney at law in this county, with one George W. Todd, not an attorney, to pay to the latter a certain percentage of the counsel fees to be received by Higgins, contingent upon the recovery of a verdict in a suit then pending against the firm of E. B. Smith and Co.; the percentage to to paid to Todd being compensation for procuring evidence, examining records and minutes, etc., for use in the above suit.
An old English authority cites the following instances of the application of the doctrine of contracts in contravention of public policy: Marriage brokerage bonds, contracts in restraint of trade, contracts by expectant heirs, or in consideration of illicit
The case at bar is claimed to come under the last-named head.
The Supreme Court of Nebraska, in Langdon v. Conlin, 67 Neb. 243, 93 N. W. 389, 60 L. R. A. 429, 108 Am. St. Rep. 643, 2 Ann. Cas. 834, lays down the law very clearly, as follows:
‘ ’A contract between an attorney at law and one who is not such an attorney, by which the latter agrees to procure the employment of the former by third persons for the prosecution of suits in courts of record, and also to assist in looking after and procuring witnesses whose testimony is to be used in the cases, in consideration of a share of the fees which the attorney shall receive for his services, is against public policy, and void.”
The Supreme Court of New York, in Lyon v. Hussey, 82 Hun, 15, 31 N. Y. Supp. 281, upholds the same doctrine, as shown by the following extract from the court’s opinion:
“It is clear that such a contract is against public policy. The recognition of contracts of this character would be the introduction of all sorts of fraud and deception in proceedings before courts of justice, in order that parties might receive compensation out of the results of their successful manufacture of proofs to be presented to the court, thus holding out a premium upon subornation. The mere statement of the proposition seems to show that such a contract could never be recognized in any court of justice.”
The courts of Kentucky and of Michigan are in accord with the same doctrine, and in fact all the courts where the subject has been discussed agree that a contract between an attorney and one not an attorney, to divide contingent fees to be received by an attorney in a suit, is repugnant to every instinct of propriety and justice, and should be regarded as immoral, illegal and void.
We are clearly of opinion that the contract relied upon in the case at bar is null and void, being against public policy.
The motion for a nonsuit is granted.
Mr. Hastings:—If your honors please, the plaintiff declines to accept a nonsuit.
Gentlemen of the jury, for the reasons stated in granting the motion for a nonsuit,' we instruct you to return a verdict for the defendants.
Verdict for defendants.
