Cone v. Gilmore

155 P. 192, 79 Or. 349, 1916 Ore. LEXIS 190

• Court: Oregon Supreme Court
• Decided: February 23, 1916
• Status: Published

Opinion

Mr. Justice Benson

delivered the opinion of the court.

The first assignment of error challenges the sufficiency of the complaint. Plaintiffs contend very earnestly that the agreement on the part of Proctor and the city officials, as set out in the complaint, discloses a void, unconscionable contract, which is against public policy. Defendants insist with equal energy that it is a perfectly honorable and legitimate transaction. Neither, however, have cited any authorities in support of their contentions, and we have not been able in our own investigation to find a case directly in point. However, the principle involved is fairly illuminated in the case of Parker v. State ex rel. Powell, 132 Ind. 419 (31 N. E. 1114), in which the attorney general filed a motion to dismiss the appeal on the ground that the suit was fictitious and collusive. In the opinion Mr. Chief Justice McBride says:

‘ ‘ The action is properly brought against the officers-named. The facts that such officers, the relator, and attorneys all entertain the same opinion of the laws in question, or are -otherwise agreed, is wholly immaterial. The officers named are sued as such, and not as individuals. The relator in such cases cannot be required to forego the right of appealing to the court, simply because the officer against whom he must necessarily proceed agrees with him politically or otherwise. It is also not material at whose suggestion or expense the suit was instituted or carried on. ’ ’

1-3. The question of whether or not a particular contract is void as being against public policy must be determined largely by the facts of the particular case, and, if the agreement is one that tends to the injury of the public or is inconsistent with sound morality, it will be condemned by the courts; otherwise, it will be upheld. The naked fact that a litigant agrees in advance to pay the expenses of a lawsuit is not sufficient, we think, to brand the contract as being against public policy. To illustrate: Assume that A and B claim title to the same tract of land, and that they are equally anxious to have their honest contentions adjudicated. Let it be further assumed that A has ample means to defray the expenses of litigation, hut that B has nothing beyond his claim of title to the land. Would it be contended that an agreement between them that B should institute proceedings to quiet title and that A should pay all the costs of the contest was immoral or against public policy? We think not. In the case at bar the litigation may have been conducted in perfect good faith by both parties, and with a genuine controversy between them, and yet the poverty of the relator and the deep concern of the municipal corporation and its inhabitants were snch as to constitute a complete justification for the contract in question. If it were otherwise, it is incumbent upon plaintiffs to allege in their complaint such facts as would disclose the immorality or injurious tendency thereof.

4. The allegation that the agreement was illegal is a mere conclusion of law. We conclude, therefore, that the complaint does not state facts sufficient to constitute a cause of suit. This result renders it unnecessary to consider the other questions presented.

The decree is reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and Remanded.

Mr. Chiee Justice Moore, Mr. Justice Bean and Mr. . Justice Harris concur.