21 Barb. 361 | N.Y. Sup. Ct. | 1855
Whatever may be the rights of the parties to this controversy, or however ungracious and in
In pursuance of, and with the view of carrying out this contract, Gregg attended at the.session of the legislature in 1849. He succeeded in procuring a bill to pass the assembly giving relief to some sixteen of the settlers; but it failed to pass the senate and become a law. In January, 1850, at a meeting of the settlers, another petition was got up and forw'arded to the leg= islature by the hand of one Dexter Hubbard, (who was largely im terested in the relief and who engaged to attend at Albany, on the payment of his expenses.) As Gregg’s contract, however, extend-: ed to the sessions of 1849 and 1850, he was not disposed, in 1850, to -release the obligations of the settlers under it without' a fur? ther trial. Hubbard entered into an arrangement to aid him upon the condition of receiving three-tenths of the ten per cent in case of success, whilst he was at the same time drawing money from the settlers to meet his expenses. Oliver P. Root, (another person largely interested in the relief,) and who had promised in 1850, to attend the legislature in behalf of the settlers without compensation, also joined and acted with Gregg. They secured the services of one Rose, then the clerk of the assembly. After importuning the members, following them to their rooms, appearing before the committees of the assembly and senate in public and in private, drawing up the report and bill for the assembly committee, pertinaciously urging and inducing the senate committee to report in favor of the bill, after they had
In January, 1851, Gregg assigned to Bose and Hubbard all the moneys due and to become due to him by virtue of the contract of the 9th January, 1849, and in April following, Hubbard and Boot assigned to the plaintiffs in this suit all their claims or demands against the settlers who entered into the agreement with Gregg, whether arising upon or in any way connected with the agreement or otherwise existing against them. The defendant, who was one of the persons that executed the- contract with Gregg, and whose indebtedness to the state was canceled to the amount of $2638.68, refused to pay the ten per cent as provided for by the agreement, and the plaintiffs, as assignees of Gregg, and also of Hubbard and Boot, brought their action to enforce such contract and recover the sum stipulated to be paid thereby. In their complaint they counted upon the contract, adding thereto a general quantum meruit for labor- and services rendered alike by Gregg, Hubbard, Boot and Bose, at the request of the defendant.
The principal and perhaps the sole inquiry in the case relates to the validity of the contract sought to be enforced. The defendant may have availed himself of the services of Gregg, and those employed under the latter, to reap a benefit, and in one point of view, as it respects Gregg and his assignees, it may be ungracious and inequitable to resist the claim; yet if the contract contravene public policy, offending public morality and decency and for that reason is illegal and void, this court should not lend its aid to enforce it,- or assist the illegal transaction in any respect. Courts of justice will leave the parties to a contract or transaction prohibited by the common law or statute, in the condition in which they find them, yielding no assistance to either party in enforcing the illegal compact. The contract in this case is one on its face stipulating for lobby services; or, in *ffect, the sale of the personal influence, efforts and labor of
The referee had no difficulty in. holding void the contract upon which the action was based; yet he reported in favor of the plaintiffs for an amount equal to the ten per cent stipulated to be paid by the void contract. He says: “I repose myself more upon the broad features of the case than I do upon any particular statement made by any particular» witness. I think it evident from the whole' case, that there was a retainer and employment of Gregg, which was never revoked or withdrawn, and that there was also a retainer and employment of Hubbard, Boot and Bose; that all three rendered legal services, which were effectual and resulted in complete success; that the defendant enjoys the full benefit of them, and I know of no good reason why he should hot be held to pay for them.” And these facts he finds to have been satisfactorily proved. This reasoning seems most extraordinary. It is in substance this: you, Gregg, contracted and was retained to do an illegal service, and you called in to your, aid, with the knowledge of the defendant, Hubbard, Boot and Bose, and finally succeeded in accomplishing the end from which the defendant has reaped a benefit. The service which you contracted to perform, or was retained to do, contravened public policy, and hence the contract was illegal, and nb recovery could be had for the rendition of the services. The contract was an entire one, and though under it Gregg and-his compeers may have performed some services that
This is what the referee undertook to do. Gregg held his written contract, claiming it as a valid and subsisting agreement down to the time of the trial. The referee finds that Gregg was retained by the settlers, and rendered legal services; yet there is no evidence in the case, of a retainer, other than that shown by the contract itself; and a branch of the defense was that the settlers, in January, 1850, had attempted to rid themselves of the services of Gregg, which the referee held that they did not accomplish, as his contract covered the sessions of 1849 and 1850. The plaintiffs sued upon Gregg’s contract, produced and proved it, and claimed the right to recover under it. Hot only Gregg, but Hubbard and Boot claimed to act under it, and insisted on their compensation, pursuant to its provisions. Bose was employed by Gregg, under that contract. In acting under the contract they may have performed some slight service of a legal character, such as presenting the petition to the legislature, appearing openly to urge the claim before the appropriate legislative committees; and after
Our conclusions are, that the contract under which the plaintiffs claimed to recover, was inconsistent with public policy, and consequently illegal and void, and no action could be maintained upon it; that the claim in this case was for services performed as lobby agents, under such contract, or upon a retainer or agreement growing out of or connected with the illegal contract or the illegal transaction contemplated by it; and hence, is equally illegal; and whether the services be performed in pursuance of a written or parol agreement, the demand cannot be enforced by action ; that holding a contract or transaction illegal and void, and consequently not enforceable, such contract or transaction cannot be sifted, the legal services rendered under it, or in its pursuit, separated from the illegal service, and a recovery had for so much of the service as shall be adjudged to be legal; that where an entire agreement contains an element which is legal and one which is void, being against public policy, the legal consideration cannot be separated from that which is illegal and void, so as to found an action on the legal consideration; that the action in this case was upon Gregg’s contract alone, and no other separate and distinct cause of action was stated in the complaint, and that holding that contract void the action failed altogether. But if this were otherwise, and there is proof in the case of a direct and independent retainer and employment of-Bose, Hubbard and Boot by the defendant, there is none of Gregg, and such retainer or employment was not to perform services only legal in their character, but to facilitate a transaction in its nature and essence void. That upon the assumption that Hubbard, Boot and Bose performed services before the commissioners of the land office and the appraisers, that were unconnected with any illegal contract or transaction, a claim for them might be enforced ; yet being mixed up with lobby services before those officers, they must share the same fate with services under the
On the hearing before the referee, numerous exceptions were taken by the defendant’s counsel as to the admission and rejection of evidence, (two or three of which were apparently well taken,) but as the judgment must be reversed upon the legal grounds above stated, I have not deemed it necessary to critically examine them.
The judgment entered on the report of the referee must be reversed, and a new trial ordered, with costs to abide the event.
Parker, Wright and Watson, Justices.]