Hunt v. Test

8 Ala. 713

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

ORMOND, J.

The principal question in the cause is, the legality of the contract, which has been assailed by the de-' fendant’s counsel, as contrary to public policy. It appears that M. Eslava was urging on Congress the confirmation of a claim derived from the Spanish government, for 5,787 acres of land in the neighborhood of Mobile, and one Gazzam, and the -plaintiff in-error, asserted a right to a portion of the same land, which would be prejudiced by the confirmation of Eslava’s claim. The undertaking of the defendant in error, was, to proceed to Washington City, “ and to do all in his power to prevent the confirmation of Eslava’s claim.” He also agreed to. endeavor to obtain “ the passage of some act, or bise have it inserted in th'e confirmation of Eslava, in such manner that the land office department may issue patents to said Gazzam and Hunt for the land embraced within said claim, and for which they have the government title.”

It is very clear that a contract by which one engaged to procure, or to endeavor to procure the passage of a law by sinister means, as by personal influence to be exerted with the members of the legislature, by urging any false consideration of public policy, or by the concealment of any thing necessary to be known to the formation of a correct judgment, would be contrary to public policy, and therefore void. The legislature should act from high considerations of public duty, and the State has a deep interest in protecting the legislative body against all assaults, or solicitations, which may hazard either the purity or wisdom of its acts,

- It is strongly urged, that although the contract in this case does not in terms stipulate for the employment of sinister means, it does provide, that the agent shall do all in his power to accomplish the object in view; that this includes improper, as well as proper means, and that the necessary tendency of permitting such solicitation, is to expose the legislative body to improper influences. Doubtless there is great force in this view of the matter, as it would in most instances be difficult, if not impossible, to ascertain, whether the agent was exerting a personal influence, or endeavoring to convince the mind — whether he was giving the results of his own unbribed judgment, or whether he was merely acting the part of an advocate. We do not however intend to pass upon this question, as a general proposition applicable to all laws, in which the public have a direct or immediate interest, because we think the law to be obtained in this case, is clearly distinguishable from such general laws.

The acts of Congress confirming incomplete titles within the territory acquired from other nations, though laws in form, are in their essence judicial determinations. It is the judgment of the nation, upon the facts ascertained, appealing to its honor, and sense of right and justice. To a proper decision, it is necessary that the facts should be ascertained, and the law understood as applicable thereto. It is no impeachment, either of the diligence, or wisdom of the national legislature, that it should devolve on others, the collection of the facts, or avail itself of the knowledge and experience of professed lawyers. Such is the habit of all Courts, and such in effect is Congress, in the settlement of these questions. It would doubtless frequently happen, as was the fact here,that the claims of different individuals to the same land would come in conflict, and in such cases it appears to us, that the opportunity for a correct decision would be much greater, after all had been said in favor of each claim by those interested in making the most of it, than if Congress had been obliged to work out the problem, unaided by the ingenuity of interested counsel, and such appears to be the course pursued at Washington, as well as at London, in such cases.

The contract on its face does not import that any unfair, or improper means were to be resorted to. To do all in his power, evidently means to exert his utmost diligence and ability in establishing the claim of his employer, and is what the law would have implied, if it had not been expressed.

The cases cited, do not bear out the argument founded upon them. There is evidently a broad distinction between soliciting a pardon from the executive, and such a case as the present. The pardoning power is a high trust lodged with the executive, to be exercised in proper cases by him, on the part of the State as its representative. The opinion of enlightened and virtuous individuals, as to the propriety of extending mercy in a given case, would always have great weight with the executive, as an exponent of the wishes of the State, and it is a fraud upon the executive if this opinion is not expressed in good faith. But it is obvious, if one is hired to express this opinion, or by operating on the sympathy '6f others, to induce them to express it, it should have no weight whatever, as its tendency, instead ofinforming, would be to mislead.

Neither is the case of the Vauxhall Bridge Co. v. Earl Spencer, 2 Madd. C. R. 356, a case in point. In that case, an act had passed the House of Commons for the erection of a bridge over the Thames, with a clause giving a compensation to the proprietors of the Battersea Bridge,, for the probable injury they would sustain by the erection of the new bridge. Objection was made in the House of Lords to this clause, making compensation. Upon this, to prevent delay, or the possible rejection of the bill, nine persons, forming a committee of the subscribers of the now bridge, secretly agreed to place a sum of money in the hands of trustees, to be paid to the proprietors of the Battersea Bridge. The clause of the bill was stricken out, and the bill passed. A bill was afterwards filed in Chancery by the subscribers of the new bridge, to prevent the money from being paid over. The Vice Chancellor held, that this secret agreement was a fraud upon the legislature, and the public, and therefore void, as against public policy. That by this secret agreement, the legislature were induced to give their sanction to the bill, supposing the claim to compensation had been given up, when but for this artifice, they might have refused to pass the bill.

It is obvious, the principle of this case has nothing to do with the case at bar. Nor is the case of Wood v. McCann, 6 Dana, 366 more in point, where the Court affirms, that an unconditional promise to pay a sum of money, in consideration of the obli-gee attending the legislature of Kentucky, and procuring the passage of an act legalizing the marriage of the obligor, and divorcing him from his former wife, was valid; it not appearing that the act was to be obtained by the personal influence of the obligee, or that any improper means were to be resorted to. This case, indeed, goes far beyond any principle intended to be asserted here.

Without pursuing this interesting question any further, we are satisfied, that in the present instance the contract is not on its face opposed to public policy, and should be upheld.

It appears that an act was finally passed, as a compromise between the parties interested, and the Court ruled, that as the condition precedent was not performed, the plaintiff could not recover upon the contract, but that if he had been ready tt endeavor, to perform it, and was prevented by the act of the other party, he was excused from the performance of the condition. That if the Compromise was made with his consent, the contract was to be considered as abandoned,-and then he could recover upon the common counts, what his services rendered were worth, although it might exceed the two thousand dollars he had stipulated for.

It is certainly clear law, as a general proposition, that an offer to perform or do an act, which is prevented by the party in whose favor it is to be done, or performed, is, in law, equivalent to a performance, or rather is a valid excuse for not performing it. The undertaking of the plaintiff was to prevent, if practicable, the confirmation of Eslava’s claim; if that could not be effected, then to p'rocui’e the insertion of a clause, that patents should issue to the defendant, and Gazzam, for the land they claimed within Eslava’s tract — or to accomplish the same thing by an independent act. It appears that during a protracted contest, extending over two sessions of Congress, the plaintiff succeeded in preventing the unqualified confirmation of the claim of Eslava, and it would be most unjust that the defendant, by a compromise with the adverse party, should snatch from the plaintiff the fruits of his labor, and deprive him of the power of performing his contract. It is urged in argument, that to show that he was injured by this interference, he must make it appear, that he could have fulfilled his 'engagement. His contract was to “ do all • in his power,” to produce a certain result, and if successful in producing that result, he was to receive the stipulated reward. Now, it is apparent, that the plaintiff cannot.prove that he could certainly have produced this result, which depended upon the passage of an act of Congress.- All therefore that he can, from the nature of the case, be required to prove, is, that the matter was in progress, and that a successful termination might reasonably have been expected. It does appear from the. testimony, that the services of the plaintiff,were efficient, as M. Eslava himself testifies, that the plaintiff « made all the mischief in his case that is, prevented his. obtaining an unqualified confirmation. Nor can the defendant object, that the plaintiff does not prove unequivocally, that he could have performed his contract, when the inability to make such proof is caused by his own act. He has himself produced the necessity of substituting probability for certainty, and cannot complain of it.

, Thus far, the case has been considered, as if the defendant had by his own act terminated the controversy between himself and Eslava, by the compromise, but it was also put to the jury upon the hypothesis, that the plaintiff had consented to the compromise.

■ The effect of this consent, if given without any other stipulation, was clearly a rescission of the contract between the plaintiff and defendant, as it rendered it impossible for the former to perform it; assuming what is indeed admitted that a different result was thereby produced, from that which was to entitle the plaintiff to the compensation agreed on. But although the contract was rescinded, so far that the defendant could not insist on its performance as a condition precedent, it must be looked to for some purposes, otherwise the services of the plaintiff would be gratuitous. He cannot pi’ove they were rendered at the instance of the defendant, but by the contract, and although as there was no abandonment of these services, at the time of the compromise, the law will imply a promise to pay their value, no presumption cqn arise of a promise to pay more for partial, than was considered by the defendant himself adequate compensation for complete success; and it would be strange if the compromise was more beneficial to the defendant than the full consummation of his wishes. We think therefore,under the circum stances of this case, the implied promise, is to pay the value of the services actually rendered, to be admeasured by the contract. [Green v. Linton, 7 Porter, 133, Haywood v. Leonard, 7 Pick. 181.]

The question argued here, that the contract was to be performed in a reasonable time, and that the defendant had the right to put an end to it, if the consummation was unreasonably delayed, does not arise upon the record.

The remaining question arises upon the pleadings and evidence, relating to the execution of the contract. The defendant pleaded non-assumpsit, with an affidavit, “ that the paper sued on by the said John Test, in the above cause described, and now pending in the County Court of Mobile, is not his act and deed.” To this plea, as appears from the minutes of the Court, a demurrer was interposed by the plaintiff, and overruled, whereupon he took issue upon the plea. In the case of McAlpin v. May, 1 Stew. 520, it was held, that a demurrer to a plea reached the want of an affidavit, when one was necessary. This decision has been repeatedly recognized since. [McWhorter v. Lewis, 4 Ala. Rep. 198.] In all cases where, under our statute, or according to our practice, a plea must be verified by oath, the oath is a part of the plea, so much so, that without it, the plea may be stricken out, on motion. [Sorelle v. Elmes, 6 Ala. Rep. 706.] The judgment of the Court then, upon the, demurrer, was a judicial determination of the sufficiency of the affidavit, and whilst that judgment was permitted to stand, it drew after it the consequence, that the plaintiff was required to establish, to the satisfaction of the jury, that the writing sued upon was the defendant’s act, in fact, or inlaw.

Upon the trial, the defendant introduced testimony for the purpose of showing that Gazzam, who had signed the contract on his behalf, was not his agent, and had no authority to execute it in his name. This testimony, the Court instructed the jury, they were not to consider, but they were to regard the execution of the instrument as established. It is clear, that the Court had not the power to instruct the jury as to the effect of the evidence, nor is that contended for here, but the argument is, as it doubtless was in the Court below, that there was no affidavit such as the statute requires, to put in issue the execution of a written instrument, the foundation of a suit. [Clay’s Dig. 340, § 52.]

' This argument is founded upon the language employed in the affidavit, “that it is not his act and deed.” According to repeated decisions of this Court, no evidence can be adduced to contradict, either the execution in iact of any instrument, the foundation of a suit, or-its binding efficacy in law as his act, but under a plea putting the fact in issue, supported by affidavit. [Martin v. Dortch, 1 iStew. 479; Winston v. Moffat, 9 Poster, 523, Lazarus v. Shearer, 2 Ala. Rep. 718; Sorelle v. Elmes, 6 Id. 706.] When therefore, the defendant denied, that the instrument declared on was his act, he asserted that Gazzam had no authority to sign it in his name. It is true, he adds it is not his “ deed,” but this cannot vitiate what precedes it, nor indeed are we sure, that it is proper to consider this word in its technical sense. This affidavit was made in pais, and it should rather be construed in its popular sense, and so considered, the term deed simply means an act, or fact, and is a word of most extensive use, and import. It is impossible to doubt the intention of the party, as he says, “ the paper sued on by the said John Test, in the above case, &c., is not his act, abd deed,” and ifhe has sworn falsely in this matter, is guilty of perjury, and may be punished.

If therefore it could be considered, that the effect of this charge was to set aside the previous judgment on the demurrer to the plea, and to render a judgment sustaining it, still the Court erred, as in our judgment the affidavit was sufficient, to put the execution of the paper sued upon in issue.

These views render it unnecessary to consider the other question argued at the bar. Let the judgment be reversed, and the cause remanded.

Judge Goldthwaite not sitting..