Owens v. Wilkinson

20 App. D.C. 51, 1902 U.S. App. LEXIS 5428

• Court: District of Columbia Court of Appeals
• Decided: May 6, 1902
• Docket: No. 1149
• Status: Published

Opinion

Mr. Justice Morris

delivered tbe opinion of tbe Court:

Two principal questions are raised by tbe appeal in this case: 1st, whether tbe contract entered into by tbe appellee and Dr. Thomas Owens was a valid contract under which tbe appellee was entitled to recover in this suit; 2d, whether tbe services contracted for and rendered by tbe appellee were of such a character as that tbe law will allow tbe recovery of compensation for them.

1. Apparently tbe contract here sued on is not tbe written contract contained in tbe power of attorney of March 18, 1896, but an antecedent oral contract of tbe same precise tenor and effect made on March 16, 1896, two days before tbe execution of tbe written contract. Accordingly tbe first count of tbe declaration, while setting forth an express and specific contract, makes no mention of tbe written instrument and no reference thereto. This course is understood to have been pursued for the reason that the written contract is admitted to be null and void in consequence of the provisions of section 3477 of the Revised Statutes of the United States. But the written contract was introduced in evidence, and reliance was placed upon it by the appellee to prove the antecedent oral contract. As stated in the bill of exceptions, it “was offered as an admission on the part of Dr. Owens of a specified amount of compensation and of employment, in support of the first- count of the declarationand it was admitted by the trial court for that purpose. And there was no other proof of the agreement between the parties and of the services to be rendered. For, although Dr. Martin testifies in that regard, his testimony merely leads back to the written contract.

Now, we are at a loss to understand what purpose in law there was to' be subserved by ignoring the written contract and declaring upon a preceding oral agreement of the same precise tenor and effect, when the only proof of the antecedent oral agreement was the written contract. It is an elementary rule of law that all antecedent oral agreements are merged in subsequent written contracts, when such agreements have been reduced to writing. Ins. Co. v. Mowry, 96 U. S. 544; Oericks v. Ford, 23 How. 49; Greenleaf on Evidence, Vol. 1, Sec. 275. If the antecedent oral agreement is of the same tenor and effect as the subsequent writing, it is useless to recur to it; if it is different from the subsequent writing, the latter will be presumed to embody the final understanding between the parties, and it will not be permitted to be varied or contradicted by the antecedent oral agreement — except, of course, in a suit to reform the written contract.

Nor is it apparent why, if the written contract is void under the statute, the oral agreement of the same precise tenor and effect can be valid. The statute does not render such contracts invalid because’ they are in writing, hut on account of their nature and character; and an oral agreement to do what is forbidden by the law is equally obnoxious as a written contract.

The statute reads as follows:— “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or •conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.” U. S. Rev. Stat., Sec. 3477.

Here, in express terms by the written contract, and equally so by the antecedent oral agreement, if the written instrument is to be taken for what it was offered in evidence, an admission of the “ specified amount of compensation ” to be paid to the appellee, that compensation consisted in the assignment by Dr. Owens to the appellee of “ an interest in said claim equal to one-half of the total amount received at the date of the settlement of said claim by the accounting officers •of the Treasury.” The assignment is distinct and positive of an “ interest in the claim ” amounting to one-half of it; and it is difficult to see how there could have been an agreement more directly or more plainly in contravention of the statute, or more in violation of that which the law-making power sought by the enactment to prohibit. That the consideration may have been a meritorious one is, of course, of no consequence in view of the express language which prohibits assignments of such claims for any consideration whatever.

Directly in point are repeated decisions by the Supreme Court of the United States. Ball v. Halsell, 161 U. S. 72; Hager v. Swayne, 149 U. S. 242; Spofford v. Kirk, 97 U. S. 484. In this last-cited case of Spofford v. Kirk it was held that, as between the assignor and the -assignee in good faith of an interest in a claim against the United States, the assignment was null and void and could not be enforced. “And in the most recent case on the subject, that of Ball v. Halsell, above.cited, where there was a contract similar to that here-involved and a similar suit to enforce it, the Supreme Court of the United States, by Mr. Justice Gray, reviewing numerous eases on the subject, held that the decision in the case of Spofford v. Kirk had never been overruled or questioned by the court, although various exceptions to it had been admitted, which are referred to in the opinion, but none of which have any bearing on the case now before us. This case plainly falls under the general rule there enunciated and repeated.

Apparently antagonistic are the cases of Wylie v. Coxe, 15 How. 415; Wright v. Tebbitts, 91 U. S. 252; Stanton v. Embrey, 93 U. S. 548; and Taylor v. Bemiss, 110 U. S. 42; and to these Mr. Justice Gray refers in the case of Ball v. Halsell; and he finds nothing in them at variance with the views expressed by him in this last-mentioned case. It will be found that in most of them only the doctrine is established that parties may lawfully stipulate for the payment of large contingent fees in such cases. In the case of Taylor v. Bemiss, Mr. Justice Miller, speaking for the Supreme Court, said:

“ It remains to be considered whether there is in this contract of employment anything which, after it has been fully executed on both sides, should require it to be declared void in a court of equity, and the money received under it returned. It was decided in the case of Stanton v. Embrey, 93 U. S. 548, that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well-known difficulties and delays in obtaining payment of just claims which are not within the ordinary course of procedure of the auditing officers of the Government, justifies a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means residing far from the seat of Government, who can give neither money nor personal attention to securing their rights.” 110 U. S. 42.

It would seem that in this case of Taylor v. Bemiss there had been a contract made between the parties for a fee of fifty per cent of the amount that might be recovered, or perhaps a fee equal to fifty per cent of such amount — for the distinction, though subtle, is well established, the one conveying an interest in the fund to be recovered, the other being merely a personal obligation the extent of which is to be measured by the amount of recovery — and that the fee had actually been paid to the attorneys or in some manner received by them. Thereupon suit was instituted in equity to recover the amount; and the court held that the fee was not an improper one under the circumstances, and that the contract having been fully executed on both sides there could be no recovery.

There is no need of elaborate argument in support of such a proposition as this, if argument were proper at all. The contract was in itself just; it had been fully executed; the fee had been paid; and it was certainly not a case where a court of equity should lend its aid to recover back money paid under such circumstances. But an executory contract invalidated by law stands upon a very different basis, when a court of common law is called upon directly to enforce it in the face of the prohibition of the statute.

In the latest case on this statute in the Supreme Court, that of Price v. Forest, 173 U. S. 410, wherein the opinion was delivered by Mr. Justice Harlan, and which was a contest between the heirs of a claimant after his death and a receiver appointed in a proceeding instituted by his creditors, it was' held that the receiver was entitled to the fund, thereby affirming a decree of the Court of Errors and Appeals of New Jersey to the same effect. The court said:

“As this court has said, the object of Congress by section 3477 -was to protect the Government, and not the claimant, and to prevent frauds upon the Treasury. Bailey v. United States, 109 U. S. 432; Hobbs v. McLean, 117 H. S. 567; Freedmans Savings Co. v. Shepherd, 127 U. S. 494, 506. There was no purpose to aid those who had claims for money against the United States in disregarding the just demands of their creditors. We perceive nothing in the words or object of the statute that prevents any court of competent jurisdiction as to subject-matter and parties from making such orders as may be necessary or appropriate to prevent one who has a claim for money against the Government from withdrawing the proceeds of such claim from the reach of his creditors; provided such orders do not interfere with the examination and allowance or rejection of such claim by the proper officers of the Government, nor in anywise obstruct any action that such officers may take legally under the statutes relating to the allowance or payment of claims against the United States. If a court, in an action against such claimant by one of his creditors, should, for the protection of the creditor, forbid the claimant from collecting his demand except through a receiver who should hold the proceeds subject to be disposed of according to law under the order of court, we are unable to say that such action would be inconsistent with section 3477.”

While the reasoning of this case would seem to be antagonistic to that in the cases of Spofford v. Kirk and Ball v. Halsell, yet it is evident from the whole tenor of the opinion, which refers in terms to the case of Ball v. Halsell as belonging to a different class, that there was no intention to overrule or modify these cases. It was intended merely to add another exception to those mentioned in the case of Ball v. Halsell; and the distinction is plainly indicated between the case of a creditor, who becomes such by a voluntary assignment of the claim or of an interest in it to him, and other creditors who are seeking through a court of competent jurisdiction to reach assets of their debtor for the satisfaction of their just claims.

In a yet more recent case in this court, that of Sanborn v. Maxwell, 18 App. D. C. 245, we had the same statute under consideration; and we held, under the authority of the case of Price v. Forrest, that it did not apply to the condition of things there presented. The case was of the same nature as that of Price v. Forrest; and it appeared that the United States had no interest in the matter.

Constrained by the express terms of the statute and by the decision of the Supreme Court of the United States in the ease of Ball v. Halsell, we must hold that, whether the contract relied upon by the appellee be the written contract of March 18, 1896, or the entirely identical oral agreement of March 16, 1896, there can be no recovery upon it in this suit.

2. But it does not follow from this that there may not be a right to recover under the common counts for a quantum meruit, if the services rendered by the appellee or stipulated to. be rendered by him were such as the law would approve and were not against public policy. It is argued on behalf of the appellant that they were in contravention of public policy, and therefore that no recovery can lawfully be had for them. And this is the second question in the case. But we apprehend that, under repeated decisions of the Supreme Court of the United States, this question also must be resolved against the contention of the appellee.

It appears very plainly from the record that the services contemplated to be rendered and which were in fact rendered consisted mainly in the procurement of legislation by the Congress of the United States and in personal solicitations of members of Congress for that purpose. That, for the accomplishment of this purpose, there were no improper or unlawful means used or intended to be used, may well be conceded; and that some of the means used, such as the preparation of a brief to be laid before some of the committees of Congress or handed to individual members of that body, were eminently praiseworthy and such as a lawyer might very properly render for the benefit of his client, may also be conceded. But that there was personal solicitation used in the procurement of the desired legislation, is very evident. Now this is what the Supreme Court of the United States has ■condemned. McMullen v. Hoffman, 114 U. S. 639 ; Trist v. Child, 21 Wall. 441; Tool Co. v. Norris, 2 Wall. 45; Marshall v. B. & O. RR. Co., 16 How. 314.

In the case of Marshall v. B. & O. RR. Co., the court, by Mr. Justice Grier, said, after a review of the cases then adduced in argument: “ The sum of all these cases is, 1st, that all contracts for a contingent compensation for obtaining legislation, or to nse personal or any secret or sinister influence on legislators, are void by tbe policy of tbe law.”

In the case of Tool Co. v. Norris, 2 Wall. 45, tbe Supreme Court, by Mr. Justice Field, said, witb reference to a contract to procure a contract from tbe Government to furnish supplies to it:

“All contracts for supplies should be made witb those, and witb those only, who will execute them most faithfully and at tbe least expense to tbe Government. Considerations as to tbe most efficient and economical mode of meeting tbe public wants should alone control in this respect tbe action of every department of tbe Government. No other consideration can lawfully enter into tbe transaction, so far as tbe Government is concerned. Such is tbe rule of public policy; and whatever tends to introduce any other elements into tbe transaction, is against public policy. That agreements, like the one under consideration, have this tendency, is manifest. They tend to introduce personal solicitation and personal influence as elements in tbe procurement of contracts, and thus directly lead to inefficiency in tbe public service and to unnecessary expenditures of tbe public funds.

“ Tbe principle which determines tbe invalidity of tbe agreement in question has been asserted in a great variety of cases. It has been asserted in cases relating to agreements for compensation to procure legislation. These have been uniformly declared invalid, and tbe decisions have not turned upon tbe question, whether improper influences were contemplated or used, but upon tbe corrupting tendency of tbe agreements. Legislation should be prompted solely from considerations of tbe public good and tbe best means of advancing it. Whatever tends to divert tbe attention of legislators from their high duties, to mislead their judgments, or to substitute other motives for their conduct than tbe advancement of tbe public interests, must necessarily and directly tend to impair tbe integrity of our political institutions. Agreements for compensation contingent upon success suggest tbe use of sinister and corrupt means for tbe accomplishment of the end desired. The law meets the suggestion of evil, and strikes down the contract from its inception.

“ There is no real difference in. principle between agreements to procure favors from legislative bodies, and agreements to procure favors in the shape of contracts from the heads of departments. The introduction of improper elements to control the action of. both, is the direct and inevitable result of all such arrangements.” * * *

“ It is sufficient to observe, generally, that all agreements for pecuniary considerations- to control the business operations of the Government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, axe void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation by refusing them recognition in any of the courts of the country.”

In the case of Trist v. Child, in which the case of Tool Co. v. Norris, among others, was cited and approved, the Supreme Court, by Mr.-Justice Swayne, with reference to a contract for the prosecution of a claim before Congress, said:

“We entertain no doubt that in such cases, as under all other circumstances, an agreement express or implied for purely professional services is valid. Within this category are included, drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable. But such services are separated by a broad line of demarcation from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case. There is no reason to believe that they involved anything corrupt or different from what is usually practiced by all paid lobbyists in the prosecution of their business.

“ The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step and puts the seal of its reprobation upon the undertaking.”

In the case of McMullen v. Hoffman, which is apparently the last enunciation of the Supreme Court on this question, the principle of the case of Tool Co. v. Norris is unqualifiedly indorsed.

To the same effect was the case of Weed v. Black, 2 MacA. 268, in the Supreme Court of the District of Columbia; and likewise numerous cases in the several States of the Union. Wood v. McCann, 6 Dana, 366; Clippinger v. Hepbaugh, 5 Watts & Serg. 315; Spalding v. Ewing, 149 Pa. St. 375; Powers v. Skinner, 34 Vt. 274; Harris v. Roof, 10 Barb. 489; Rose v. Truax, 21 Barb. 361; Brown v. Brown, 34 Barb. 533; Gil v. Williams, 12 La. Ann. 219; Coquillard v. Bears, 21 Ind. 479; RR. Co. v. Chicago R’Way, 75 Wis. 224; Houlton v. Dunn, 60 Minn. 26; Richardson v. Scott’s Bluff Co., 81 N. W. Rep. 309.

There are, it is true, various decisions apparently to the contrary, several of which are cited in the brief for the appellee: as Denison v. Crawford Co., 48 Iowa, 211; Russell v. Burton, 66 Barb. 539; Lyon v. Mitchell, 36 N. Y. 235; Kansas Pacific Railway Co. v. McCoy, 8 Kans. 359; Chesebrough v. Conover, 140 N. Y. 382.

In one of these cases, that of Lyon v. Mitchell, 36 N. Y. 235, the Court of Appeals of the State of New York, by Mr. Justice Hunt, upheld the validity of an agreement to procure a contract from the Government, and condemned the case of Tool Co. v. Norris to the contrary. But the force of the decision is greatly impaired by the fact that Mr. Justice Hunt afterwards in the Supreme Court of the United States, in the case of Trist v. Child, supra, concurred in the decision of that ease, wherein the authority of the case of Tool Co. v. Norris, was cited with approval. Some of these cases upon examination will be found to fall within the exceptional cases, noted in Trist v. Child, wherein professional services may lawfully be rendered. And so far as any of them are in antagonism to the principle laid down as the law by the Supreme Court of the United States, they are wholly without force or authority for us.

As we understand it, the rule to be deduced from the decisions of the Supreme Court of the United States which have been cited, is this — that agreements for professional services in the procurement of Congressional legislation, which involve personal solicitation of members of Congress, •will not be enforced by the courts, whether improper means are used or not in such solicitation. Here there was undoubtedly personal solicitation of several members of Congress. It is not charged that any improper means were sought to be used to control their action, and in all probability none such were used; but the personal solicitation was of the kind that has been reprobated by the Supreme Court as tending to lead all concerned in it to the temptation to disregard the public interest for the sake of private emolument. It may be remarked that in most cases it would be difficult, if not impossible, to prove the use of improper means to influence the action of those who are thus approached; and that for this reason also, as well as to remove the occasion of temptation, the courts refuse to lend their aid where there is any personal solicitation whatever, whether in itself' legitimate or illegitimate.

In view of this doctrine laid down by the Supreme Court of the United States, we must hold that there can be no recovery by the appellee for his services in the premises. And while, as already stated, some of those services were undoubtedly legitimate and not obnoxious to any rule of public policy, such as the preparation of a brief, yet inasmuch as the contract was one and indivisible, and it is impossible to distinguish what was allowed by law from that which was disallowed, there can be no recovery for any part of the services. What was said in the case already cited of Trist v. Child, supra, is appropriate. There the court said:

“ We have said that for professional services in this connection a just compensation may be recovered. But where they are blended and confused with those which are forbidden, the whole is a unit and indivisible. That which is bad destroys that which is good, and they perish together.”

From what we have said it follows that the judgment appealed from must be reversed, with costs. And it is so-ordered.

A petition by the appellee to the Supreme Court of the United States for a writ of certiorari to this court, was denied.