Wile v. . Wilson

93 N.Y. 255 | NY | 1883

We think the execution by the plaintiff to the county of Monroe, at the request of the defendant, of a release of all right or claim under the contract between the plaintiff and the county for the unexecuted work embraced in the contract for indexing the records, was a good consideration for the agreement of the defendant upon which the action is brought, conceding that the contract between the plaintiff and the county is controlled by the decision in People, ex rel. Welch, v. Nash (62 N.Y. 484) and was ultra vires. The invalidity of the contract did not arise from absence of power in the board of supervisors to contract for the indexing of the records, but from the exclusive right of the clerk of the county, under the statute as construed, to perform the service in case the work should be authorized. So far as appears, no question had been raised as to the validity of the contract between the plaintiff and the county when the contract between the plaintiff and defendant was made. The plaintiff, at that time, had partly prepared the indexes, but some difficulty had arisen between him and the committee of the board of supervisors in respect to the manner in which the work had been performed. The defendant was clerk of the county and desired to obtain a contract to complete the work. The situation made it important for him, in order to secure a contract for himself, to have the contract with the plaintiff out of the way. The board of supervisors were not bound to enter into any contract for indexing the records, and the defendant may have reasonably supposed that until the plaintiff's contract was canceled, or its invalidity finally determined, the supervisors would not enter into a new contract for the same service. Under these circumstances he induced the plaintiff to voluntarily cancel and release his contract upon the promise to pay him a percentage of the compensation he might receive in the event of his obtaining a new contract for the work. The execution of the release was an affirmative act on the part of the plaintiff, done at the request and for the benefit of the defendant. The question of the validity of the plaintiff's contract, as we have said, had not been raised between the parties; nor, so far as it appears, had it then been adjudicated. The release removed an obstruction in the defendant's path, and because he can now say, in the light of subsequent adjudications, that the plaintiff's contract was invalid, it does not prevent the plaintiff's act, performed at his request, from operating as a consideration for the contract in question.

The point that the contract is void as against public policy, depends upon conflicting evidence. On its face it discloses no illegality, and the charge of the judge that it was a contract which the parties had a right to make, related, as the context shows, to the contract evidenced by the written instrument. The exception to the charge does not raise the point that, upon the defendant's evidence, the agreement was against public policy.

We are of opinion, therefore, that the judgment of the General Term should be reversed, and the judgment rendered on the verdict should be affirmed.

All concur.

Judgment accordingly.