Copyright
George L. (George Louis) Reinhard.

A treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant online

. (page 18 of 82)
Online LibraryGeorge L. (George Louis) ReinhardA treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant → online text (page 18 of 82)
Font size
QR-code for this ebook


of contracts to procure the performance or omission of an act on the
part of a public officer. If procured either by the use of corrupt
means, or by the exercise of personal influence or persuasion, the con-
tract is condemned by the law. The means by which the result is

•^'Nave V. Wilson, 12 Ind. App. 38; '» Nave v. Wilson, 12 Ind. App. 38.
Embrey v. Jemison, 131 U. S. 336. ""a Richardson v. Scott's BlufE

*" Pearce v. Foote, 113 111. 228. County, 59 Neb. 400.



61 HOW AGENCY MAY BE CREATED AND PROVED. § 71

obtained may in themselves be harmless or void of direct evil ; it is
sufficient if the employment tends to corruption and is therefore con-
trary to public policy. The public good requires that even appear-
ances of evil shall be avoided in the public service. Of course, if
corrupt or fraudulent methods are employed, and the agent's compen-
sation is contingent upon the success of the enterprise for which he is
employed, the evil is so much more flagrant, and the law is that much
more emphatic in its condemnation. Within this class of prohibitions
fall the awarding of public contracts, such as contracts for the erection
of buildings, bridges or other structures of a public nature, to particu-
lar individuals; contracts for the location of public offices, such as
postoffices, railroad depots, etc.'^^

§ 71. Contracts rendered void by federal statutes. — The act of
congress of 1853, ch. 81, "to prevent frauds upon the treasuiy of the
United States," annuls all ehampertous contracts with agents of pri-
vate claims ; it forbids all .officers of the United States to be engaged
as agents or attorneys for prosecuting claims against the government,
and prohibits them from receiving any gratuity or interest in them in
consideration of having aided or assisted in the prosecution of them,
under penalty of fine and imprisonment in the penitentiary; it for-
bids members of congress, under like penalty, to act as agents for
any claim in consideration of pay or compensation, or to accept any
gratuity for the same; it subjects any person who shall attempt to
bribe a member of congress to punishment in the penitentiary, and
the party accepting the bribe to the forfeiture of his office. The
federal supreme court, in commenting upon this, act, and in discus-
sing the practice thereby sought to be prohibited, speaking through
Mr. Justice Grier, says: "If severity of legislation be any evidence
of the practice of the offenses prohibited, it must be the duty of
courts to take a firm stand, and discountenance, as against the pol-
icy of the law, any and every contract which may tend to introduce

" See further, as to the invalidity 37 Cal. 168; Fuller v. Dame, 18

of "lobbying contracts." Mills v. Pick. (Mass.) 472; 1 Story Eq. Jur.,

Mills, 40 N. Y. 543; Clippinger v. § 293; Goodrich v. Tenney, 144 111.

Hepbaugh, 5 W. & S. (Pa.) 315; 422, 36 Am. St. 459; Milbank v.

Powers V. Skinner, 34 Vt. 274; Carle- Jones. 127 N. Y. 370, 24 Am. St.

ton V. Whitcher, 5 N. H. 196; Nich- 454; Spaulding v. Ewing, 149 Pa.

ols v. Mudgett, 32 Vt. 546; Haas v. St. 375, 34 Am. St. 608; Houlton v.

Fenlon, 8 Kan. 601; Martin v. Wade, Nichol, 93 Wis. 393, 37 Am. St. 928.



§71 PEIXCIPAL AND AGENT. 62

the offenses prohibited."'"- And in the same opinion it is further
said: "Legislators should act from high considerations of public
duty. Public policy and sound morality do therefore imperatively
require that courts should put the stamp of their disapprobation on
every act, and pronounce void every contract, the ultimate or prob-
able tendency of which should be to sully the purity or mislead the
judgments of those to whom the high trust of legislation is confided."
In the same case the court calls attention to the fact that American
courts have steadfastly condemned such contracts by refusing to give
relief to the party or parties seeking to profit by them, or to en-
force their provisions. "The sum of these cases is," says the learned
judge: "1. That all contracts for a contingent compensation for ob-
taining legislation, or to use personal or any secret or sinister in-
fluence on legislators, are void by the policy of the law. 2. Secrecy,
as to the character under which the agent or solicitor acts, tends to
deception, and is immoral and fraudulent; and where the agent con-
tracts to use secret influences, or voluntarily, without contract with
his principal, uses such means, he can not have the assistance of a
court to recover compensation. 3. That which, in the technical
vocabulary of politicians, is termed 'log-rolling,' is a misdemeanor
at common law, punishable by indictment." And in another case,
Mr. Justice Swayne, in delivering the judgment of the court, says:
"The prohibition of the law rests upon a solid foundation. A pri-
vate bill is apt to attract little attention. It involves no great public
interest, and usually fails to excite much discussion. Xot infre-
quently the facts are whispered to those whose duty it is to investigate,
vouched for by them, and the passage of the measure is thus secured.
If the agent is truthful, and conceals nothing, all is well. If he
uses nefarious means with success, the springhead and the stream of
legislation are polluted. To legalize the traffic of such service W'ould
open the door at which fraud and falsehood would not fail to enter
and make themselves felt at every point. It would invite their pres-
ence and offer them a premium. If the tempted agent be corrupt
himself, and be disposed to corrupt others, the transition requires
but a single step. He has the means in his hands, with every
facility and a strong incentive to use them. The widespread sus-
picion which prevails, and charges openly made and hardly denied,
lead to the conclusion that such events are not of rare occurrence.
Where the avarice of the agent is inflamed by the 'hope of a reward

"Marshall v. Baltimore, etc., R. Co., 16 How. (U. S.) 314.



63 HOW AGENCY MAY BE CREATED AND PROVED. § 72

contingent upon success, and to be graduated by a percentage upon
the amount appropriated, the danger of tampering in its worst form
is greatly increased. It is by reason of these things that the law is
as it is upon the subject. It will not allow either party to be led into
temptation where the thing to be guarded against is so deleterious to
private morals and so injurious to the public welfare. In expressing
these views wo follow the lead of reason and authority."''^

§ 72. Actual fraud need not be shown — Evil tendency sufficient. —
Actual fraud or corruption in procuring the enactment of a law or
the performance of a deed by an officer need not be proved in order
to invalidate the contract of agency in such a case. It is not even
necessary to show that evil was done by the performance of the con-
tract. It is sufficient if it tends to the injury of the public. The
courts will not inquire into the motives of those engaged in the
transaction. If the contract is contrary to public policy, it can not
be enforced in a court of justice. "The law looks to the general
tendency of such agreements, and it closes the door to the tempta-
tion by refusing them recognition in any of the courts of the coun-
try."'^* In a case decided by the supreme court of Indiana, some per-
sons who were the owners of real estate adjacent to a building suit-
able for a postoffice entered into a combination for the purpose of
securing the location of the postoffice in such building, so as to en-
hance the value of their own properties ; and as part of the plan the
parties undertook that certain individuals of their number should
use their influence with the government officials to effect the purpose
of the combination, for which services they were to receive pay in
the event of success. The office was located as desired and the parties
to whom compensation had been promised, upon failure of the others
to pay the same as agreed, brought suit. The trial court decided
against the validity of the claim on the ground that such contracts
are contrary to public policy. Elliott, C. J., in the course of the
opinion affirming the judgment, said: "Where the general public
has an interest in the location of an office, a railroad station, or the
like, a contract to secure its location at a particular place is held to be
against public policy and not enforceable. There are many cases
holding that an agreement to locate a railroad station at a designated

"Trist V. Child, 21 Wall. (U. S.) pinger v. Hepbaiigh, 5 W. & S. (Pa.)

441. 315; Mills v. Mills. 40 N. Y. 543;

'^ Providence Tool Co. v. Norris, 2 Fireman's Charitable Ass'n v. Berg-
Wall. (U. S.) 45. See also, 'ciip- haus, 13 La. Ann. 209.



§ 73 PRINCIPAL AXD AGEXT. 64

place is not enforceable because against public policy." The prin-
ciple upon which these cases proceed is that the public good, and
not private interests, should control in the location of railroad depots ;
and this principle certainly applies with full force to an office of a
purely public character, such as a postoffice. We find in these railroad
cases, and there are very many of them, a principle which supplies a
rule governing such a case as the present. It is true that there is
some difference in the views of the courts upon the question whether
an agreement for the location of a depot is valid when it does not
restrict the location to the place named, and no other, but upon the
general principle there is entire harmony. * * * ^ wholesome
rule of law is that the parties should not be permitted to make con-
tracts which are likely to set private interest in opposition to public
duty or to public welfare. * * * It is not necessary that actual
fraud should be shown, for a contract which tends to the injur}- of the
public service is void although the parties entered into it in good
faith. The courts do not inquire into the motives of the parties in
the particular case to ascertain whether they were corrupt or not, but
stop when it is ascertained that the contract is one which is opposed
to public policy. Nor is it necessary that an evil was in fact done
by or through the contract. The purpose of the rule is to prevent
persons from assuming a position where selfish motives may impel
them to sacrifice the public good to private benefit."^®

§ 73. Contracts to procure office — To electioneer — To appoint to
office. — All contracts having in view the procurement of office in the
public service by methods other than those approved by law are con-
trary to public policy and void, though they be not intrinsically
immoral. Thus, if a candidate for a public office at an election
should employ an agent to advocate his claims before the people and
otherwise use his influence for him in obtaining the office, in con-
sideration of a promise to share the salary or emoluments with such
agent, the promise can not be enforced and no compensation can be

"Citing St. Louis, etc., R. Co. v. well, 86 Cal. 542; Burney v. Lude-

Mathers, 104 111. 257; Williamson ling, 47 La. Ann. 73. 16 So. 507;

V. Chicago, etc., R. Co., 53 Iowa 126, Spalding v. Ewing. 149 Pa. St. 375.

39 Am. Rep. 206. 15 L. R. A. 727; Bermudez Asphalt

'"Elkhart County Lodge v. Crary, Paving Co. v. Critchfield. 62 111. App.

98 Ind. 238, 49 Am. Rep. 746. See 221; Fearnley v. De Mainville, 5

further, on this point, Houlton v. Colo. App. 441; Woodman v. Innes,

Dunn, 60 Minn. 26; Foltz v. Cogs- 47 Kan. 26.



65 HOW AGEXCY MAY BE CREATED AND PROVED. § 73

collected for the services thus rendered." The same doctrine ap-
plies, of course, to an appointive office. All public appointments to
office should be made upon considerations of the public interest solely ;
and all other considerations, involving the one of corrupt means,
such as the payment of money or other improper means, are regarded
as contrary to public policy, as holding out temptations to appoint
persons who are unfit or improper.'^* In a case decided in Xew
York,^» one of the parties had agreed to withdraw his application for
an office and aid the other in securing the appointment, in considera-
tion of which the former was to allow the other one-half of the fees
and emoluments of the office as long as he held it. The court said:
"I think that this contract was void, because it stipulated that Hook
should have a pecuniary compensation for withdrawing his applica-
tion, by which he had probably driven off all competition and con-
tributed to reduce the number of applicants to himself and Gray. I
have no doubt it is void, because it is stipulated that Hook should
have pecuniary compensation for aiding Gray to obtain the appoint-
ment. And I have no doubt that any agreement between two citi-
zens by which one stipulated to pay the other a portion of the fees
and emoluments of a public office which he is seeking, in considera-
tion that the other will aid him in obtaining it, is against public
policy and void."^*' And so is an agreement to pay another to work
and canvass among the voters in order to secure a nomination or elec-
tion to an office.^^ This is true also of an agreement by a candidate

"Gaston v. Drake, 14 Nev. 175, 38 La. Ann. 634. But there are

33 Am. Rep. 548; Martin v. Wade, 37 many items of legitimate expense

Cal. 168. connected with a public election for

"Robertson v. Robinson, 65 Ala. which liability may be incurred by

610, 39 Am. Rep. 17; Blatchford v. one who is a candidate for an office

Preston, 8 T. R. 89. at such election. Thus, it has been

'"Gray v. Hook, 4 Comst. (N. Y.) held that a promise to compensate

449. one for making speeches and advo-

^ See also, Liness v. Hesing, 44 eating the election of the promisor

111. 113, 92 Am. Dec. 153; Filson v. to office is not void at common law:

Himes, 5 Pa. St. 452, 47 Am. Dec. Murphy v. English, 64 How. Pr.

422; Outon v. Rodes, 3 A. K. Marsh. (N. Y.) 362. And that compensa-

(Ky.) 432, 13 Am. Dec. 193; Hager tion may be recovered for erecting

V. Catlin, 18 Hun (N. Y.) 448; and taking down a tent in which

Faurie v. Morin, 4 Mart. (La.) 39, political meetings are held during a

6 Am. Dec. 701; Keating v. Hyde, campaign: Hurley v. "Van Wagner,

23 Mo. App. 55; Foley v. Speir, 100 28 Barb. (N. Y.) 109.
N. Y. 552; Wood worth v. Wilson, *' Keating v. Hyde. 23 Mo. App.

11 La. Ann. 402; Glover v. Taylor, 555; Jackson v. Walker, 5 Hill (N.
5 — Principal and Agent.



§ 74 PRINCIPAL AND AGENT. 66

for office that he will appoint another as his deputy, if elected.®^
All such agreements are against public policy and void.

§ 74. Contract with attorney to divide fees. — Where one as the
agent and contidential adviser of a business firm agrees with an at-
torney that, in consideration of a division of fees which the latter
may receive of the firm, he, the confidential agent, will procure the
discharge of another competent attorney and have him, the attorney
Avho makes the agreement, appointed in his stead, and succeeds in hav-
ing the old attorney discharged and the new one appointed, public
policy forbids the recovery of any portion of such fees by such con-
fidential agent and adviser.*^ An agency to secure a contract from
the head of a department of the general government at Washington, in
consideration that the agent should receive all the government should
pay on such contract above a certain sum, was held to fall within the
prohibition of the law.^*

§ 75. Claims against government — Contracts to locate buildings
at certain points. — A party has a right, however, to employ legal
counsel to assist him in prosecuting claims against the government in
any of its departments where the same may be pending ; and an attor-
ney or agent thus employed may recover his compensation for pro-

Y.) 27; Robertson v. Robinson, 65 unlawful and Improper influences,
Ala. 610, 39 Am. Rep. 17. In the all such agreements will be con-
case last cited the court had under demned." Indeed, it may be stated
consideration the validity of an as the law that any promise for the
agreement between two parties by appointment of his deputy, by an
which one promised the other that officer, at a future time, is void,
if he, the promisor, were elected to though based on a sufficient consid-
the office of tax assessor, he would eration: Hager v. Catlin, 18 Hun
appoint the other party his chief (N. Y.) 448; Conner v. Canter, 15
deputy at a salary of $2,500, to be Ind. App. 690.

paid from fees and perquisites of "Stout v. Ennis, 28 Kan. 706;

the office, etc. The court held the Robertson v. Robinson, 65 Ala. 610,

agreement void, saying: "No judi- 39 Am. Rep. 17; Groton v. Waldo-

cial tribunal, so far as we can dis- borough, 11 Me. 306, 26 Am. Dec.

cover, has ever given countenance 530.

to any such agreement; and if pop- *'^ Byrd v. Hughes, 84 111. 174, 25

ular elections are to be kept free Am. Rep. 442.

from the taint of selfishness and ^ Providence Tool Co. v. Norrls, 2
corruption — if public offices are to Wall. (U. S.) 45; Oscanyan v. Win-
be dignified as public trusts, and the Chester Repeating Arms Co., 103 U.
performance of official duty pre- S. 261.
served from the contamination of



67 HOW AGEXCY MAY BE CREATED AND PROVED. § 76

fessional services thus rendered for preparing the claim and present-
ing its merits before the proper officials, if the services be free from
any taint of fraud, misrepresentation or unfaimess.^^ And no good
reason can be conceived of why the employment of an attorney would
not be legitimate for the purpose of presenting to the members of a
legislative body, or public officials having the measure in charge, the
merits of a bill introduced for passage, or the advantages of the loca-
tion of a building or office, if the agent who is employed for such pur-
pose uses no improper means in making such presentation. If he
gives the members or officers to understand the attitude in which he
appears ; if his compensation does not depend upon the success of the
scheme; if he does not bring to bear any corrupt or other improper
influences, but employs only open and honorable methods to con-
vince their understandings, — the employment can not be said to violate
public policy, and he can recover compensation for such services.**'
In the case of Beal v. Polhemus,^*^^ the Michigan supreme court held
that a note given in consideration that the payee would erect a build-
ing near the payer^s place, to be occupied as a postoffice by a given
date, is not void as opposed to public policy, it appearing that the
payee used no improper or corrupt means or influence to secure the
location. But an agreement very similar to the one upheld in this
case was condemned by the Indiana supreme court as being against
public policy.**^

§ 76. Procuring pardons. — The employment of an attorney or
agent to procure the pardon of a convict stands upon the same footing.
If the means used before the governor or pardoning board are open

^ Stanton v. Embrey, 93 U. S. 548. disapproved. A distinction, too, is

'" Keating v. Hyde, 23 Mo. App. made between cases of interference

555; Oscanyan v. Winchester Re- with legislative action, appointment

peating Arms Co., 103 U. S. 261. to oflSce, or executive clemency,

See also. Barber Asphalt Paving where personal and political influ-

Co. V. Botsford, 56 Kan. 532; Rus- ences are brought to bear, on the

sell V. Burton, 66 Barb. (N. Y.) 539; one hand, and a case of the sale of

Winpenny v. French, 18 Ohio St. property to the government, on the

469. But the rigor of the old doc- other, in which latter case the agent

trine on this subject has been some- openly professes to be acting upon

what modified by the more recent commercial principles,

decisions, and in Lyon v. Mitchell, ^a 67 Mich. 130.

36 N. Y. 235, 93 Am. Dec. 502, the " Elkhart County Lodge v. Crary,

doctrine of the case of Providence 98 Ind. 238, 49 Am. Rep. 746.
Tool Co. V. Norris was expressly



g 77 PRINCIPAL AND AGEXT. 68

and honest, and if tho capacity in which the agent acts is disclosed to
tlie executive or officers of the l)oard, the employment can not be held
illegal or in violation of public policy, and the agent may recover
proper compensation.'*^ "For the purpose of procuring such pardon,
the person employed may present the case to the executive with such
petitions, memorials, statements of facts and evidence as are suitable
to satisfy the pardoning power of the propriety of the relief desired,
and we think no censure to any person for his exertions in such a
case if the measures adopted are consistent with the facts of the case
and with the truth and honesty of all parties concerned, while any
effort to obtain such a pardon by falsehood and misrepresentation,
or by any species of fraudulent contrivance, or by prostituting the
influences resulting from official station, or from personal relation
to the pardoning power, is entirely forbidden by law."*^

§ 77. Immoral contracts. — All contracts against public morality,
that is to say, those of an immoral tendency or that are based upon
an immoral consideration, are void. Hence, the employment of an
agent for the purpose of selling or circulating literature of an in-
decent character is not enforceable, and the agent can not legally
recover compensation.^" Within this rule fall contracts for the pro-
curing of illicit sexual intercourse. °^ The invalidity of such con-

^Chadwick v. Knox. 31 N. H. 226, »»Gale v. Leckie, 2 Stark. 96. 3 E.

64 Am. Dec. 329; Thompson v. Whar- C. L. 337.

ton, 7 Bush (Ky.) 563, 3 Am. Rep. "'Walker v. Gregory. 36 Ala. 180;

306; Bremsen v. Engler, 49 N. Y. Potter v. Gracie, 58 Ala. 303, 29 Am.

Super. Ct. 172; Moyer v. Cantieny, Rep. 748; Walraven v. Jones, 1

41 Minn. 242; Timothy v. Wright, 8 Houst. (Del.) 355; McDonald v.

Gray (Mass.) 522; Bird v. Meadows, Fleming, 12 B. Men. (Ky.) 285;

25 Ga. 251. Winebrinner v. Weisiger, 3. T. B.

*''BeIl, J., in Chadwick v. Knox, Mon. (Ky.) 32; Vincent v. Moriarity,
supra. Where improper or corrupt. 52 N. Y. Supp. 519, 31 App. Div. (N.
means are to be employed to secure Y.) 48^; Cusack v. White. 2 Mill
the pardon, such as dishonest in- (S. C.) 279, 12 Am. Dec. 669. The
fluences or the suppression of any fact that the man contracts with a
facts as to the character in which third person as trustee for the
the agent is to appear, etc., the woman will not render such a con-
agency is void; that is to say, the tract valid: Benyon v. Nettlefold,
agreement can not be enforced on 17 Sim. 51. 15 Jur. 209; Smyth v.
either side: Adams Express Co. v. GriflBn, 14 L. J. Ch. 28. But the fact
Reno, 48 Mo. 264; Hatzfield v. Gul- that a man and a woman live to-
den, 7 Watts (Pa.) 152, 32 Am. JDec. gether illicitly will not prevent them
750; Haines v. Lewis, 54 Iowa 301, from entering into contracts with
37 Am. Rep. 202. each other which have no connec-



69



HOW AGENCY MAY BE CREATED AND PROVED.



78



tracts is based upon their immoral tendency, and not upon the theory
that illicit sexual intercourse is not a sufficient consideration.

§ 78. Contracts hindering public justice — To procure false testi-
mony. — Any and all contracts tending to interfere with the course
of public justice, without reference to the motives of the parties enter-
ing into such contracts, are inhibited."- And likewise, contracts to
procure false testimony or to suppress legal evidence in any criminal
or civil cause are illegal.®^ Agreements to procure testimony that
is true have been upheld, however, and compensation for such services
may be recovered in a proper case.^*



tion with the unlawful intercourse:
Winebrinner v. Weisiger, 3 T. B.
Mon. (Ky.) 35. And while, as a
general rule, there can be no re-
covery by the woman against
the man, on an implied contract
,ior household services or work
and labor during the existence of
the illicit cohabitation, yet an ex-
press contract to pay for such labor
or services will be upheld, if the
illicit relations do not form a part
of the contract or constitute the con-
sideration in whole or in part; but
there must be proof of an express
contract: Rhodes v. Stone, 17 N. Y.
Supp. 561; Cooper v. Cooper, 147
Mass. 370. And it seems that where
certain immoral practices are
licensed by law, contracts made with
reference thereto may be enforced:
Baumeister v. Markham, 101 Ky.
122; Lyman v. Townsend, 24 La.
Ann. 625; Chateau v. Singla, 114
Cal. 91, 55 Am. St. 63. And a sale
of furniture on monthly payments
evidenced by notes, the furniture to
be used in a house of prostitution,
and the title to remain in vendor
till price was paid, was held void,
and the notes not collectible, being



Online LibraryGeorge L. (George Louis) ReinhardA treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant → online text (page 18 of 82)