Frenkil v. Hagan

125 A. 909, 146 Md. 94, 1924 Md. LEXIS 116

• Court: Court of Appeals of Maryland
• Decided: June 7, 1924
• Status: Published

Opinion

AjoktNS, J.,

delivered the opinion of the O'ourt.

Isaac Frenkil and Samuel M. Frenkil, trading as Baltimore Plumbing and Supply Company, purchased a lot of black steel pipe at a public auction, held at Norfolk, Virginia, by the Eastern Surplus Property Control of the War Department of the United States Government for $12,241.10, malting a deposit of $1,200 cash, together with a letter of credit from the National Bank of Baltimore, whereby said bank agreed to accept a ninety-day draft against said company accompanied by bill of lading covering the whole or any part of said pipe, the total of said draft not to exceed $11,041.10, the company guaranteeing the bank against loss. Thus the War Department was secured the payment of the balance, and soon thereafter shipments went forward. On inspection of the pipe shipped, it was found that it was in very bad condition and practically valueless, and unlike the sample by which the purchase was made; whereupon appellants advised the Government .authorities of the condition of the pipe and ashed that they be relieved from the contract, and also notified the bank not to pay any drafts of the Government. But Captain Palmer, the Chief Commodity Officer of the Board of Eastern Surplus Property Control at Brooklyn, New York, which had jurisdiction of the matter, recommended that the sale be not cancelled because appellants bad bought the pipe “as is.”

Isaac Frenkil went to New York in February, 1921, for the purpose of further contesting* the matter with the Board of Control. In the course of a, conversation with his brother-in-law, Jacob K. Goldscheider, at his store in that city, the latter suggested that Edward G. Hagan, the appellee, might be able to assist him,. Hagan was a prominent politician, a member of the Tammany organization, and was then or had been captain of bis ward. An introduction followed, an agreement was reached between Frenkil and Hagan for the services of Hagan, and after some1 negotiations between them and Captain Palmer, the contract was cancelled and the $1,200 which Frenkil had deposited was returned to him. Whereupon Hagan demanded payment for his services on the basis of an alleged contract of 33-| per cent. P’ayment being refused, suit was brought and a verdict recovered for $1,529.19. This appeal is from a judgment entered on that verdict.

There are in the record thirteen hills of exception, none of which was pressed at the argument except the last, the first twelve relating to exclusion of evidence which counsel for appellants stated “came in, or was. admitted at other times or in other forms.” So it will only be necessary to discuss the thirteenth, which was to the ruling of the trial court in refusing defendants’ first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth, thirteenth, fourteenth and fifteenth prayers and overruling defendants’ special exceptions to plaintiff’s first and second prayers. The reporter is requested to set out all the prayers offered on both sides and defendants’ special exceptions.

According to* the testimony offered by both tbe plaintiff and defendant®, there was an express contract between the parties for compensation to be paid by tbe defendants to* tbe plaintiff in tbe event of tbe cancellation by tbe Government of its contract with defendants, plaintiff’s contention being tbat it was to tbe thirty-three and a third per cent, of tbe contract price of tbe pipe, and defendants that it was to be one hundred dollars. The court below was therefore clearly right in refusing all prayers which sought to have submitted to the jury tbe finding, of the value of the services as the basis for a verdict. Townes v. Cheney, 114 Md. 362; Miller v. Mantik, 116 Md. 279; Sherley v. Sherley, 118 Md. 1. This disposes of defendants’ sixth, seventh, eighth, tenth, eleventh, thirteenth, fourteenth, and fifteenth prayers.

There is no serious contention by appellant that there was error in granting plaintiff’s* prayers and in overruling defendants’ special exceptions thereto, unless the point was well taken in the special exceptions that “the plaintiff’s own evidence shows that the alleged contract sued on was contrary to public policy and hence unenforceable.”

As defendants’ first and second prayers, asking for a directed verdict, are based on the same theory as that contained in the 'above quoted objection to' plaintiff’s prayers, these prayers will be considered together.

Appellants, in support of their contention that the case should have been withdrawn from the jury, rely on the recent case of Steffey v. Bridges, 140 Md. 429. In that case it was held that real estate broker could not recover for services rendered a client in procuring the post office department as a tenant. There was involved a postal regulation forbidding the payment of compensation for1 such services, which would of itself have been'sufficient ground for the decision. While it was said the case fell within the reasoning of Providence Tool Co. v. Norris, 2 Wall. 54, the decision was based on the post office regulation.

It does not follow, from anything that was decided in the Bteffey case, that one may not lawfully employ an agent to assist him in obtaining relief from a claim of the Government against him, provided the services to be rendered are of a legitimate character. Indeed the weight of authority supports the view, and government regulations recognize, that there are certain legitimate services which may be contracted for even in connection with the1 procurement of government contracts. But such services do not include the use- of personal or political influence. Trist v. Child, 21 Wall, 441; Wright v. Tebbits, 91 U. S. 252; Stanton v. Embrey, 93 U. S. 548; 13 C. J., pages 427-433, secs. 366-369; Greenhood, Public Policy, pages 367, 368; Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5.

We are unable to- say as a matter of law that the undisputed evidence shows that the contract, sued on was contrary to public policy and unenforceable. It follows that there was no error in granting plaintiff’s first and second prayers, and in overruling defendants’ special exceptions, and in refusing defendants’ first and second prayers. But there is evidence in the record from which the jury might have found that the service which appellee was expected to render was through the use of political influence, and the defendant was entitled to have that proposition submitted to the jury. Defendants’ third prayer was a correct statement of the proposition and the refusal of that prayer was prejudicial error.

Defendants’ fifth prayer presents a correct proposition of law and is supported by evidence; but it is entirely inconsistent with defendants’ third and onedialf prayer, which was granted.

The fifth should have been granted and the third and one-half refused. But appellants are not in a position to take advantage of these errors.

Defendants’ fourth prayer was properly refused, a.s there ■was. evidence legally sufficient to prove that the $1,200 refunded by the Government was included in the sum on which the percentage of compensation was to be calculated. But there was also evidence to the contrary, and therefore it was prejudicial error to refuse defendants’ ninth prayer.

There was no error in refusing defendants’ twelfth prayer. Tt improperly segregates a single fact. Besides, all that is properly in tbe prayer is covered by tbe third prayer, wbicb should have been granted.

For the errors in refusing defendants’ third and ninth prayers, the judgment must be reversed and the case remanded for a new trial.

Judgment reversed and case remanded for a new trial, with costs to appellants.