163 N.W. 707 | S.D. | 1917
Action at law for the recovery of money. As a second cause of action plaintiff alleged:
“[1] That the defendant herein, Charles L. Plyde, was, prior to the 1st day o-f October, 19x2, convicted in the United States court of using the mails -to defraud-; that after such conviction, th-e said defendant, Charles L. Hyde, was duly sentenced by the United States -court to a term in the penitentiary, and that said Charles L. Plyd-e thereafter appealed said action to the Circuit Court of Appeals of the United States, which said Circuit Court affirmed the said conviction of said Charles L. Hyde; that thereafter the said Charles L. Hyde made an attempt to obtain a pardon from said sentence of conviction, and that the said Charles L. Hyde requested this plaintiff to exert his services in obtaining a pardon for the said Charles L. Hyde, and to also secure for the said Charles L. Hyde competent -counsel to present said matter to the President of the United- States, William H. Taft; that this plaintiff, at the instance and request’ of defendant, went to Washington, D. C., -to work for said pardon, and that this -plaintiff secured the services of one Wade PI. Ellis of Washington, D. C., an attorney, and also the services of C. B. Ellis, a brother of said Wade Ellis, and this plaintiff interested said-attorneys in behalf of said Charles L, Hyde; that the-said Wade Ellis and C. B. Ellis stated -to -this plaintiff that they would appear and render services looking toward the obtaining of a pardon for Charles L. Hyde for the sum of five thousand ($5,000) dollars retainer, and the additional sum of twenty thousand ($20,000) dollars in case said pardon was granted; that this plaintiff was a close personal friend of the said Wade H. Ellis and C. B. Ellis, and both the said W'ade.H. Ellis and C. B. Ellis had, prior thereto, been attorneys for' this plaintiff, and that plaintiff had great influence with the said Wade H. Ellis and C. B. Ellis, and that this defendant, Charles L. Hyde, knowing all of said facts, requested this plaintiff to use his services 'and his influence with the said Wade H. Ellis and the said C. B. Ellis to obtain a reduction in the fees to be paid for the services so to be rendered by the said Wade H. Ellis and C. B. Ellis, and that this plaintiff, at the instance and request of the defendant herein, did use his influence with the said*199 Wade H. Ellis and C. B. Ellis, and as a result thereof induced the said Wade H. Ellis and C. B. Ellis to render services in behalf' of obtaining said pardon for the sum of three thousand ($3,000) dollar© retainer, and' the additional sum of twelve thousand ($12,000) dollars, in case a pardon was granted, instead of the sum of five thousand ($5,000) dollars retainer, and the additional sum of twenty thousand ($20,000) dollars, in case a pardon was obtained, first demanded by the said Wade H. Ellis and C. B. Ellis; that thereafter the said Wade H. Ellis and C. B. Ellis rendered services in behalf of said Charles L. Hyde, and as a result of said services obtained for the said Charles L. Hyde a pardon from said conviction, which pardon was granted by the President of the United States, William H. Taft. (2) That all of the services rendered by this plaintiff for and in behalf of this defendant in securing attorneys for said defendant, and in securing a reduction of the fees of said attorneys for securing said pardon, and that all of the work and services rendered by this plaintiff for defendant as hereinbefore in this cause of action alleged were done and performed by plaintiff at the special instance and request of the defendant. (3) That said defendant promised and agreed to pay plaintiff the said sum of five thousand ($5,000) dollars for such services so rendered as hereinbefore alleged. (4) That all of said services hereinbefore -in this ■ cause of action alleged were rendered by plaintiff for and in -behalf of said defendant between the 1st day of October, 1912, and the 3d day of March, 19x3. (5) That thereafter and prior to the commencement of this action the plaintiff herein duly demanded of'defendant the payment of said services so rendered by plaintiff for defendant, but that no- paid thereof has ever been paid.”
The defendant demurred to the second -cause of action set forth in the -corn-plaint for that it did not state facts sufficient to constitute a -cause of action. The demurrer was overruled. Therefrom the defendant appealed.
The alleged contract set forth in- this cause of action may -be -considered from two angles: (a) That portion looking toward the rendition of services- by plaintiff in securing the pardon; (b) that portion relating to services rendered by plaintiff in securing the employment of attorneys and in securing a reduction in the amount of their proposed fees.
“While freedom of contract is a constitutional right which ought not tO' be interfered with except for good cause, individuals cannot be permited to do or fail to' do- anything the performance or omission of which is in any degree clearly injurious to the public.”
Again on page 486 of the same work it is stated:
“Anything inconsistent with the impartial course of justice will not be upheld even if the intent of the parties is not fraudulent and although no evil resulted.”
In M., D. & P. Ry. Co. v. Way, 34 S. D. 435, 148 N. W. 858, L. R. A. 1915B, 925, this court said, quoting from Cyc.:
“The test is the evil tendency of the contract, and not its actual injury to> the public in a particular instance.”
In Win. Deering & Co. v. Cunningham, supra, a pardon case, the Supreme Court of Kansas said:
“In agreements providing for the use of personal influence to control official action, parties have sometimes stipulated that no1 ■improper means were intended and that only reasonable and legitimate methods were to be used, but even these stipulations were not sufficient to save the agreements from the ban of the law or the condemnation of the courts.”
In Clippinger v. Hepbaugh, 5 Watts & S. (Pa.) 315, 40 Am. Dec. 519, the court gaid:
“It matters not that nothing improper was- done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to- sound' morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use*201 of an extraneous, secret influence over an important branch of the government.”
These are the principles upon which it is 'held contrary to public policy for a lawyer to1 perform or to contract ho perform services under an application for pardon or in lobbying, beyond those which are strictly in the line of professional employment.
“No lawyer is obliged to act either as adviser or advocate for every person who' may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what business he will accept as counsel; what causes he will bring into court for plaintiffs; what cases he will contest in court for defendants.”
“A contract b)? a laymen to influence an attorney at law to accept, legal employment for another, and to reduce his proposed fees therefor, does not afford a legal basis for recovery of money.”
We do not, however, wish to be understood as holding' that a contract, initiated by the proposed client, with a third person to pay for the latter’s time and expenses in securing a lawyer for the former, might not be enforceable if the element of personal influence over the lawyer or other improper means were not used nor contemplated, but such is not this case. Elliott, Contracts, § 1050.
The demurrer to the second cause of action should have been sustained, and the order overruling the same is reversed.
