85 Kan. 678 | Kan. | 1911
The opinion of the court was delivered by
The Kansas City Paper House, a corporation, sued the Foley Railway Printing Company, a corporation, upon á promissory note. The defendant claimed a credit of $500 on account of an indebtedness of that amount which it asserted was owing to P. T. Foley, its president, -by the plaintiff. This is the only matter still in controversy. A referee found in favor of the defendant, and a judgment was rendered accordingly, from which the plaintiff appeals.
The appellant contends that even if it was indebted to Foley, it could not be required to credit the amount upon the note, since no assignment was shown from Foley to the Foley company. Foley, who personally managed the business of his company, testified in substance that he intended the company to have credit on the note for his claim against the paper company, and gave the latter notice to that effect. This in effect amounted to an assignment, and the paper company, being fully protected against a further assertion of the claim by Foley, can not complain of the lack of formality.
The appellant also contends that there was no competent evidence that it owed Foley the $500, because his claim rested upon an agreement which he professed to have made with a salesman of the paper company, who was not shown to have had any authority to bind his employer in that respect, and whose authority was denied under oath in the reply. Foley testified in effect that the paper company, through the salesman referred to, agreed to pay him $500 for his assistance in procuring a contract to supply paper and other material to the state; that he went to Topeka, and in the interest of the paper company, “talked up” its goods to a member of the executive council, showing samples; that after thf
Other questions are argued which will naturally
The evidence suggested, but perhaps did .not absolutely determine, that Foley’s compensation was to be' contingent upon the procuring of the state contract. There is a conflict of judicial opinion as to whether that circumstance should stamp the contract as illegal. In Tool Company v. Norris, 69 U. S. 45, it was said:
“Agreements for compensation contingent upon success suggest the use of sinister and corrupt means for the accomplishment of the end desired. The law meets-the suggestion of evil, and strikes down the contract from its inception. There is no real difference in principle between agreements to procure favors from legislative bodies and agreements to procure favors in the' shape of contracts from the heads of departments. ... All agreements for pecuniary considerations to control the business operations of the government . . . are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to' the general tendency of such agreements, and it closes the door to temptation.by refusing them recognition in any of the courts of the country.” (pp. 55, 56.)
“We know the sinister influences that are being constantly employed and that willing ears are lent to corrupt propositions; and when men have every motive for the advancement of such propositions, it is safe to say that any contract which leaves an opportunity for the tender of such propositions can not be too forcibly condemned. Let men who seek dealings with the government employ men who are prompted by no motives except the desire to fulfill their duty. The inconvenience attending such a restriction is so much counterbalanced by the obvious benefits that the seeming injustice has no place worthy of notice.” (Greenhood, Public Policy, p. 365.)
That test, however, seems to be repudiated in Oscanyan v. Arms Co., 103 U. S. 261, where stress is laid upon the question, not whether the amount of compensation depends upon the result, but whether it is unusual or excessive, the court saying:
■ “And here it may b'e observed, in answer to some*683 authorities cited, that the percentage allowed by established custom of commission merchants and brokers, though dependent upon sales made, is not regarded as contingent compensation in the obnoxious sense of that term, which has been so often the subject of animadversion by this court, as suggesting the use of sinister ■or corrupt means for accomplishing a desired end. They are the rates established by merchants for legitimate services in the regular course of business.” (p. 276.)
The fact that the compensation of a salesman, employed to sell goods to the public, depends upon his success may tend to show a purpose to use illegal means, or a probability that such means will be used, but we do not think that it should be regarded as conclusive on either point, nor that in and of itself it should be deemed to characterize the employment as illegal. (Paving Co. v. Botsford, 56 Kan. 582, 44 Pac. 3; Howland v. Coffin, [N. Y. Supr. Ct.] 47 Barb. 653; Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784; Beal v. Polhemus, 67 Mich. 130, 34 N. W. 532; Stanton et al. v. Ernbrey, Administrator, 93 U. S. 548.) We believe this view accords not only with sound reason, but with what has actually been decided by the courts. Cases bearing more or less directly on the matter are collected in various textbooks and notes. (15 A. & E. Encycl. of L. 974; 9 Cyc. 490; 121 Am. St. Rep. 726; 6 A. & E. Ann. Cas. 218; 4 L. R. A., n. s., 213.) Many of the cases in these collections involve contracts for influencing legislation, which are not entirely analogous to those for the sale of goods, and may well be regarded as subject to a more stringent rule.
Foley testified that he talked with a member of the ■executive council, showed him the samples, and went over the matter with him so that he would understand the questions that would come up. That these representations were made to an individual instead of to the council as a body might afford a reason-for believing that illegal methods were pursued, but does not of itself
The judgment is reversed and a new trial ordered.