74 Neb. 132 | Neb. | 1905
We shall use the terms plaintiff and defendant with reference to the title of the cause in the district court.
The plaintiff alleges that he entered into an oral contract with the defendant, whereby he was employed by the defendant as his agent and attorney to take such action and render such services in the way of collecting facts, preparing and submitting to the Indians and the proper authorities of the federal government arguments on the merits of the claims of those holding lands purchased under the act of congress approved March 3, 1881, providing for the sale of the remainder of the reservation of the confederate Otoe and Missouri tribes of Indians in the states of Nebraska and Kansas, as in the judgment of plaintiff might be necessary and proper to secure from the federal government and said Indians a reduction in the amount which, under the laws of the United States as they then stood, it was necessary to pay to satisfy the unpaid balance due the government by the defendant and other purchasers under said act; that for said services the defendant undertook and agreed to pay the plaintiff a sum equal to ten per cent, of whatever such reduction might be obtained. Among other allegations in the petition, of acts done and services performed by the plaintiff in pursuance of said -contract, is the following: “That
The principal contention of the defendant is that the contract is illegal and contrary to public policy, in that it was a contract to pay a contingent fee for influencing legislation. In order to understand this contention, it is necessary to refer to some of the circumstances which gave rise to the contract, and what was done by plaintiff in pursuance of it. By the provisions of the act of March 3, 1881, above referred to, with the consent of the Otoe; and Missouri tribes of Indians, expressed in open council, the secretary of the interior was authorized to survey and to sell the lands of those Indians lying in Nebraska and Kansas. After being surveyed, the-lands Avere to be appraised by three commissioners, of whom one was to be selected by the Indians and two by the secretary of the interior. After such survey and appraisal, the secretary of the interior was authorized to offer it for sale through the land office at Beatrice, in tracts not exceeding 160 acres, to actual settlers or purchasers, Avho should make oath before the register or receiver at the land office that they intended to occupy the land for authority to purchase which they made application, and Avho should, within three months after such application, make a permanent settlement upon the same. These sales Avere to be for cash, or one-fourth in cash to become payable at the expiration of three months from the date of filing the-application, one-fourth in one year, one-fourth in two years, and one-fourth in three years from the date of sale. No land Avas to be sold for less than the appraised value thereof, and in no case for less than $2.50 an acre. There was no provision in the act that the land should be sold at public auction. It was similar to a former act of congress for the sale of a portion of the same Indian reservation,
“In the total disregard not only of the spirit and letter of the law, but the official assurances * * * after the survey and appraisement of the lands had been completed, to the complete surprise of the intending settlers, the general land office issued an order for a public sale.”
“And the tracts were awarded to the highest bidders therefor at prices greatly in excess of the appraised value.”
That “the sale was controlled by a mob of disorderly, intoxicated and irresponsible persons; and the intending settlers seeking to secure lands of their selection, and on which they had previously made settlement in accordance with the spirit and purpose of the law, were brought into unfair competition and serious menace from the mob which had gathered for the purpose of speculation and making trouble, and not for the purpose of making actual settlement of the lands through bona -fide purchase.”
“The commissioner of the general land office was present at the sale, endeavored as best he could to protect the bona fide intending settlers, and assured them, in his official capacity, that no advantage would be taken of the excessive bidding, and that in the end the government would make a fair and reasonable adjustment, and exact no more from the purchasers than the real and appraised value of said lands. The settlers relied upon- these assurances, made the bids necessary to secure the lands, and entered upon them.” See report No. 2,198, 55th congress, 3d session, house committee on Indian affairs.
After the sales, the settlers made some efforts to obtain
It is insisted that the case falls within the rule announced in Richardson v. Scott’s Bluff County, 59 Neb. 400, which is as follows:
“A contract by Avhich a person agrees to draft a bill, have it introduced in a legislature, explain it to and make arguments in its favor before committees of the legislature, and do all things needful and proper to secure its passage; such party to receive no compensation unless the passage of the bill, an appropriation act, is procured — if successful, the fees not fixed, but to be liberal — is vicious, illegal and void; and, in the event of the passage of the bill, there can be no recovery of a fee in a suit upon the contract, nor as upon an implied contract, nor a quantum meruit for the services performed.”
On the other hand it is claimed that there is nothing on the face of the contract to show that it contemplated legislative action; that the facts stated sIioav that such action was not Avithin the contemplation of the parties when the contract was made, and therefore that it Avas not a contract to procure legislation. But we think the plaintiff should be held to the interpretation Avhich he himself placed upon the contract. By the express terms of the contract, he Avas to render such services in the way of col
“We entertain no doubt that in such cases, as under all other circumstances, an agreement express or implied for purely professional services is valid. Within this category are included, drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them, orally or in writing, to a committee or other proper authority, and other services of like character.”
From a comparison of this rule with that stated in the Richardson case, waiving for the present the question of contingent fees, it Avill be seen that the latter places all contracts for the employment of agents and attorneys to secure legislation under the ban, Avhile under the former, under certain circumstances and within proper limits, such contracts are valid. The rule announced in Trist v.
It has been held in some cases that where the fee is contingent, as in this case, there is a strong temptation on the part of the agent or attorney to make use of improper means to effect the desired end, and for that reason a con
“It was decided in the case of Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983, that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well known difficulties and delays in obtaining payment of just claims, which are not within the ordinary course of procedure of the auditing officers of the government, justify a liberal compensation in successful cases,*142 where none is to be received in case of failure. Any other rule would work much hardship in cases *of creditors of small means residing far from the seat of government, who can give neither money nor personal attention to securing their rights.”
A contract, whereby an attorney undertakes to procure a pardon for one convicted of crime is not invalid because the compensation is made contingent on success. Moyer v. Cantieny, supra. On the validity of such contracts generally see, also, Wright v. Tebbitts, and Denison v. Crawford County, supra. Wylie v. Coxe, 15 How. (U. S.) 415; Barber Asphalt Paving Co. v. Botsford, 56 Kan. 532, 44 Pac. 3; Aultman v. Waddle, 40 Kan. 195; Sedgwick v. Stanton, supra; Hunt v. Test, 8 Ala. 713, 42 Am. Dec. 659; Beal v. Polhemus, 67 Mich. 130; Wildey v. Collier, 7 Md. 273, 61 Am. Dec. 346.
In the light of the authorities cited, we are unable to see wherein the contract in suit contravenes any rule of public policy either as to the nature of the services contemplated by the parties when the contract was made, or those rendered in pursuance of it. It is not sufficient to say that the plaintiff might have resorted to illegal or improper means to attain the end contemplated by the contract; that might be said in any case. But the public interest is not well served by indulging baseless suspicions of wrongdoing. While public policy forbids the enforcement of an illegal or immoral contract, it is equally insistent that those which are lawful and contravene none of its rules be duly enforced, and not set at naught or held invalid on a bare suspicion of illegality. Had the defendant done for himself all that is shown the plaintiff did for him in pursuance of the contract, it would have been what is everywhere recognized as a legitimate exercise" of his rights as a citizen. If it were competent for the defendant to do those things in his own behalf, we are unable to see why the services of one employed to act for him should be held illegal or contrary to public policy.
Complaint is made of some of the instructions, but such
It is' recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
The following opinion on rehearing was filed March 8, 1906. Judgment of affirmance adhered to:
Our original opinion in this case, ante, p. 132, affirms the judgment of the trial court, and bolds that tbe contract on which this action was based is valid and enforceable. A rehearing has been allowed; the case has been presented to the court by oral argument and on printed briefs, and the question now is shall we adhere to that opinion. It is stated therein: The contract in question, as construed by the plaintiff in the court below, is clearly
“The plaintiff and the defendant entered into an oral agreement, whereby the defendant employed the plaintiff to act for the defendant as his attorney and agent to take such action and render such services in the way of collecting facts, preparing and submitting to the Indians and proper authorities of the government of the United States arguments upon the merits of the claims of those holding lands purchased from the government, as aforesaid, for a reduction, and upon the justice and advisability of such reduction to and for all concerned as in the judgment of the plaintiff might be necessary and proper to secure from the government of the United States, and the said Indians, a rebate or reduction in the amount which, under the laws of the United States as they then stood, it was necessary to pay to the government of the United States to satisfy and extinguish the unpaid balance due the government of the United States for the said land under the terms of the said sale to the said defendant; that as a part of said agreement, and to induce the plaintiff to undertake the task of securing a reduction of, or rebate upon, the payment required to be made, as aforesaid, for the said land to the government of the United States, the defendant at said time orally agreed with, and promised to the plaintiff to pay to the plaintiff a sum of money equal to ten per cent, of the reduction or rebate which the plaintiff might secure of or upon the amount due the government as aforesaid, and the plaintiff at said time, as a part of said agree*145 ment, orally promised and agreed to and with the defendant to undertake to secure a rebate upon or reduction of the amount remaining to be paid to the government for the said land as aforesaid; that it was further at the said time orally agreed by and between the plaintiff and the defendant that the sum of money to be paid by the defendant to plaintiff, as aforesaid, should be due and payable from the defendant to the plaintiff as soon as the said reduction or rebate was secured, and the government of the United States accepted the reduced amount in full payment for said land.”
It is apparent from reading the contract that it is valid on its face, and one that the parties had a right to make. It contains no agreement, in terms, to procure legislative action, and it is quite clear from the record that no such action was considered necessary, or was in any way contemplated, by the parties thereto at the time it was made. It appears that, after the plaintiff below had obtained the consent of the Indians to a reduction of the price of their lands, as contemplated by the agreement, and when such consent was presented by the plaintiff to the secretary of the interior for his approval, that officer was also of opinion that he had the power to make the necessary orders to close up the transaction, under the authority of the act of congress of March 3, 1893, referred to in our former opinion; and it would seem that, when the secretary had approved of the reduction sought by the plaintiff, and agreed to by the Indians, the plaintiff had performed, as far as he could, the services contemplated by the parties when the contract was made. That such an agreement was perfectly legitimate, and the services thus performed were proper, there can be no doubt. It is shown that it was the secretary of the interior that originated the idea that additional legislation should be had, giving Mm further power, before making his final order approving of the agreement of the parties and granting the rebate in question. He therefore, on his own motion, and without' suggestion of the plaintiff, prepared a bill for that purpose,
In Richardson v. Scott’s Bluff County, supra, the contract was: “To draft a bill, have it introduced in the legislature, explain it to and make arguments in its favor before committees of the legislature, and do all things needful and proper to secure its passage; such party to receive no compensation unless the passage of the bill, an appropriation act, is procured — if successful, the fees not fixed, but to be liberal.” By a comparison of the contracts it clearly appears thht they are not in the same class; that one is a legitimate contract for professional .'services, where legislative action is not contemplated or contracted for, while the other is an agreement to procure legislative action, to wit, the passage of an appropriation bill, by drafting the bill itself, having it introduced in the legislature, and doing all things necessary, including lobbying, to procure its passage. That such an agreement is a lobbying contract, is against public policy, and falls within the rule announced by the courts in the cases relied on by counsel for the defendant, there, can be no doubt.
In order to dispose of the whole question, it only remains for us to consider the nature of the services performed by the plaintiff in carrying out his part of -the agreement. It is insisted by counsel for the defendant that such services were illegal, opposed to considerations of public policy, and were void; that plaintiff cannot recover for such services, and by their performance the contract is brought within the rule last above stated. We art unable to give our assent to this view of the matter. It appears that the services performed bv the plaintiff up to and including the time when he had secured the ap
For the foregoing reasons, our former opinion is adhered to.
Affirmed.