Barker v. Cairo & Fulton Railroad

The

appellant’s counsel has not shown us any reason for depriving a lawyer, who had been retained by a corporation, to perform specific services on its behalf, of his compensation, because certain contracts made at the same time, between the president of the corporation and third persons, having relation to the same objects, were illegal. Nor have we found any authority for that *331proposition. It would be a great hardship if he were bound thus to probe the purposes of his client, to find out whether they were honest or not, before he engaged in his service; and the hardship would be still greater if he were bound to the same duty in respect to the private contracts of the president of the corporation. We think there is no such rule. bTor does the fact that the lawyer employed is a stockholder, or otherwise interested in a corporation, incapacitate him in the slightest degree from being retained in its business, or from recovering payment for services rendered on such retainer. The only legitimate effect such a fact can have, is to render necessary, clearer and stronger proof of such retainer. Whether the requisite proof on this subject was given in the present case is a question which we shall not decide, as we have concluded to grant a new trial upon another ground, which will be stated presently, and the plaintiff may give further evidence on that subject.

With respect to the point that the evidence showed that the employment of Hr. Rice was illegal, we think it does not sufficiently appear that the nature of the services actually rendered by him were such as the -law condemns. We cannot draw inferences not warranted by the evidence in the case. On the contrary the legal presumption is, .that the services were legal and proper. Services like those of Mr. Rice, performed openly, and without the use of sinister means, are not illegal. Sedgwick v. Stanton, 14 N. Y. 289; Wildey v. Collier, 7 Md. 273; Lord Howden v. Simsbey, 10 A. & E. 793; Taylor v. Chichester Railway Co., L. R., 4 App. Cas. 628.

Some of the objects embraced in the-contracts, made on the same day Mr. Rice was retained, are unquestionably against public policy, and, therefore, such as the law will not aid or sanction. Whether Mr. Rice was so far implicated in them as to vitiate his employment, it is not necessary or proper now to decide, for the reason before stated.

We think the hypothetical question put to the witnesses called as experts was inadmissible. It was based on supposed services in excess of those sued for, and went quite beyond the limits of the evidence. The particular services sued for, and the sums charged for the same, were specified in a bill of particulars. The opinions of the witnesses should have been confined to the value of the services so specified, and we think it was not competent to prove the value of all the services in a lump. The evidence should not have been received originally, and the motion made by the defendant to *332strike it out should have been granted. Nor were these errors of the referees cured by their finding, that in deciding the case they excluded the evidence from consideration. There is no finding expressly against the evidence, and we' cannot decide as a legal proposition that it did not influence the judgment of the referees. The authorities on this subject are uniform in condemning the practice pursued by the referees. Wagener v. Finch, 65 Barb. 493; Allen v. Way, 7 id. 585; Haswell v. Bussing, 10 Johns. 128; Penfield v. Carpender, 13 id. 350; Livermore v. Bainbridge, 44 How. 362, and cases cited. We think such a practice peculiarly dangerous in a case like this, and are not, therefore, disposed to relax the rule on the subject. We have not considered the other exceptions in the case.

For the error stated the judgment should be reversed and a new trial granted, before other referees, with costs to abide the event.

New trial granted.