Hall v. Bishop

3 Daly 109

• Court: New York Court of Common Pleas
• Decided: December 15, 1869
• Status: Published

Opinion

By the Court.

Daly, F. J.

Two questions arise upon this appeal. The first is whether a lawyer who has not obtained a license as required by the revenue act of the United States (12 H. S. Statute at Large, p. 453, § 57, p. 459, § 64, s. d. 31) can recover for professional services rendered after the passage of the act.

Where a statute enacts as one of the means of raising a ' revenue, that those engaged in a particular occupation shall take out a license and pay a certain sum of it, or be subject to the payment of a greater sum, by way of penalty, for neglecting to do so, the only consequence that follows the neglect or omission is the liability to the penalty (Johnson v. Hudson, 11 East, 180; Foster v. Taylor, 5 B. & Ald. 898; Witherall v. Jones, 3 id. 221; Brown v. Duncan, 10 B. & Cress. 93; Cope v. Rowland, 2 Mees. & Welsb. 158; Smith v. Mawhood, 14 id. 452), for there the penalty is imposed only for the purpose of securing the payment of the amount required for the taking out of the license (Griffith v. Wells, 3 Denio, 227). But where the object of requiring that a license shall be obtained is to limit the pursuit of certain callings to those who are declared duly qualified by the granting to them of a license, then the penalty implies a prohibition against engaging in that pursuit unless a license is procured (Bartlett v. Viner, Carthew, p. 252; Skin, p. 322; De Begnis v. Armistead, 10 Bing. 107; Forster v. Taylor, 5 B. & Adol. 887); or where, for the purpose of securing a more effectual compliance with the requirements of a revenue law, it is enacted that no one shall engage in or carry on a particular occupation, until he shall have obtained a license as provided for in the act, it is an express prohibition, and in the language of Chief Justice Holt, in Bartlett v. Viner (supra), “ every contract made for or about any matter or thing which is prohibited and made unlawful by statute, is a void contract^ though the statute does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute.” (See to the same effect, Mitchell v. Smith, 4 Dallas, p. 269; 1 Binn. 110; Griffith v. Wells, 3 Denio, 226; Smith v. Mawhood, 14 Mees. & Welsb. 463; Best v. Bauder, 29 How. 489.) The revenue act of 1862 provides that those engaged in certain trades or occupation shall obtain a license under the act. Lawyers are among the persons or classes embraced. They are required to pay the sum of ten dollars for a license, and there is a general provision that no person shall engage in, prosecute, or carry on any of the trades or occupations enumerated in the act, until he shall have obtained a license therefor in the manner provided.

The act of 1862 declares who shall be deemed a lawyer within the meaning of the statute in these words : “ Every person whose business it is for fee or reward to prosecute or defend causes in any court of record, or other judicial tribunal of the United States, or of any of the States, or give advice in relation to causes or matter pending therein.”

After the passing of this act, the plaintiff rendered professional services for the defendant, which were not of the character above stated. They were not rendered in the prosecution or defence of any cause in a court of record, nor did they consist in the giving of advice in relation to any cause pending in a court. There was, consequently, nothing in the act of 1862 to prevent the plaintiff from recovering for these services. But after these services were rendered, the revenue law was amended by the act of'the 30th of March, 1864 (Laws of the U. S. for 1863 and 1864, p. 261), by substituting for the previous provision in relation to the giving of advice the following and more enlarged clause: “ or give legal advice in relation to any cause or matter whatever” And after the passage of this amendatory act, the plaintiff, in August, 1864, made an agreement with the defendant to organize a mechanical corporation, under the general act of the State, which consisted in drawing all the papers and rendering all the legal advice requisite, or, as the plaintiff calls it, counsel, and doing other acts necessary for the formation of the company, for which, and thq prior services before referred to, the defendant agreed to give the plaintiff the one-twentieth part of the shares which the defendant was to have in the company.

The defendant offered evidence to show that the plaintiff had not obtained a license as required by the revenue law. The referee ruled it out as immaterial, but has found, as matter of fact, that the plaintiff had not, up to the commencement of the action, obtained any license required by the act of Congress, and this being conceded, the remaining question is, whether this contract, or any part of it, can be enforced.

In my judgment the whole contract is absolutely void. It was not in the plaintiff’s power, without a license, after the passage of the amendatory act of 1864, to carry on the business _ of giving legal advice in relation to any matter whatever, and that this was a contract made in the prosecution of such a business, and, therefore, void, is obvious from the plaintiff’s own statement, that he rendered under it all the counsel necessary for the formation of the company, and from the averment in his complaint that he was to draw all papers and writings, and give all counsel and advice requisite and necessary for the formation of a corporation under the laws of this State, coupled as it is with the previous averment that he was an attorney and counsellor at law, duly admitted to practice in all the courts of this State.

A part of the consideration of this contract was the legal service which the plaintiff had rendered previous to the passage of the amendatory act of 1864. As I have remarked before, there was nothing in the act of Congress to preclude him from performing services of' this description at the time when they were rendered, or which would prevent him from recovering in an action at law what they are usually worth. But a-recovery for them cannot be sustained either upon the complaint or upon the evidence in this action. The complaint is upon a special contract. It is to recover damages for the breach of such a contract in the refusal of the defendant to transfer and deliver to the plaintiff the twentieth part of the shares to which the •defendant was entitled in the corporation, and the only measure of damages in such a case is the value of the shares which the defendant was to transfer, at the time when they were to be delivered. It is impossible to separate from it the services which were rendered prior to 1864, as there is no averment and no proof in the case of the specific value of these services. If there was anything in the evidence showing the value of these services, it would be in our power, treating the special contract as void, to conform the pleadings to the proof, and sustain the judgment, upon an implied contract for the amount which these services were reasonably worth, which we would certainly do in furtherance of justice. But as the case comes before us, both upon the pleadings and the proof, it is a judgment for a breach of a special contract, which, as an entirety, cannot be enforced, and the past consideration which entered into and formed a part of it, cannot be severed from it and treated as an implied contract in the absence of any proof as to the amount or value of the consideration. The report will have to be set aside and the judgment reversed; but as to the plaintiff, should he now bring an action to recover for the services prior to 1864, might be met by the plea of the statute of limitations; we think it but just to reverse the judgment, and set aside the report without prejudice to the plaintiff’s right to move to amend his complaint, and give evidence of an implied contract instead of resorting to another action.

Judgment reversed and report set aside, but without prejudice to the plaintiff' to move to amend the complaint.