Cary v. Western Union Telegraph Co.

The plaintiffs in this action were attorneys and counsellors of this court, and this action was brought to recover compensation for services rendered to the defendant in advising and consulting with the defendant concerning certain proposed tax legislation of the legislature of the State of New York, and in advising and consulting with the attorney-general and comptroller of the State in behalf of the defendant respecting such legislation and making arguments before said attorney-general .and comptroller, resulting in the adoption of said proposed legislation as a department measure by the comptroller’s office, and for services in negotiating and accomplishing the settlement of certain tax litigations pending against the defendant. The answer of the defendant denies the contract as alleged and further answering admits that certain services were rendered by one of the plaintiffs, Cary, but alleges that they were not of the value of over $500, and denies that the services so rendered by Cary were rendered upon a formal retainer or an actual contract, or that payment should be made therefor. By consent the case was referred and the referee, reported in favor of the plaintiffs, finding the value of the services to have been $5,000.

It is claimed upon the part of the defendant, that the services, for which compensation is sought, were based upon an illegal contract and that therefore no recovery could be had therefor. The *612learned referee in his opinion in dealing with this objection, states that no such defense is set up in the answer and that the testimony which led to the point being raised, came up incidently. The fact that no such defense is set up in the answer, formed no objection to its consideration. Under the general denial contained in the answer the defendant had a right to establish such facts as would show that no valid contract had ever been entered into between these parties. This subject seems to have been considered in the case of Oscanyan v. Arms Company (103 U. S., 261), in which the court says: “ The position of the plaintiff that the illegality of the contract in suit cannot be noticed because not affirmatively pleaded, does not strike us as having much weight. We should hardly deem it worthy of serious consideration, had if not been earnestly pressed upon our attention by learned counsel. The theory upon which the action proceeds is that the plaintiff has a contract, A'alid in law, for certain services. Whatever shows the invalidity of the contract shows that in fact no such contract as alleged ever existed.”

A consideration of the effect of a general denial in a case which presents precisely the same principle may serve to illustrate the question under review. The complaint alleges a contract; the answer denies it. The plaintiff proves an oral contract which, by the statute of frauds, is required to be in writing, or proves a contract in writing not subscribed as required by that statute. The defense under a general denial that there was no valid contract, would clearly be available, and that is all that is sought to be established in the case at bar. The plaintiff alleges a contract and in his proof of the contract introduces evidence which shows its invalidity. Under a general denial the defendant may avail himself of this evidence and insist that his denial has been established in that no legal or valid contract has been proven.

This brings us to the consideration of the question whether the plaintiffs established any valid contract authorizing them to recover tor tire services which they rendered to the defendant. It appears from the evidence that the State had recovered a judgment for taxes under the laws of 1880 against the defendant for a very large amount of money, and the defendant was anxious in regard to the result of a decision in the Court of Appeals, to which court the ease was upon its way. The president then requested the plaintiff Cary *613to go to Albany and see if some relief could be obtained from tbe State officers in view of the claimed injustice of tbe judgment. Tbe plaintiff went to Albany, saw tbe comptroller and attorney-general wbo informed him they could do nothing in tbe premises. He then associated himself with bis co-plaintiff Mr. Wells, and they took up tbe interest of certain mining companies wbo were affected in tbe same way with tbe telegraph companies under tbe tax law referred to. Tbe plaintiff and Mr. Wells went to Albany and made arguments there before tbe attorney-general on behalf of the mining companies, with a view to tbe passage of an act which they proposed to introduce which would relieve the mining companies from tbe tax. Upon discussion with tbe officers of tbe defendant they were requested to include tbe defendant if possible in tbe bill which they bad then already prepared on behalf of tbe mining companies. To this they consented and tbe plaintiff Cary went to Albany and bad interviews with tbe comptroller and attorney-general. At these interviews be sought to get tbe State officers to adopt this bill as a department measure.

This they agreed finally to do upon tbe defendant settling up the original judgment. Thereafter Mr. Carey went two or three times to Albany, and, on one or more occasions after the bills bad been proposed, saw prominent members of both branches of tbe legislature, explaining tbe bill to them and urging them to take an interest in its passage, or to facilitate its passage as best they could. For these services a charge of $5,000 was made, which was found by tbe referee to be reasonable.

From this testimony, it appears that compensation for these services was allowed by tbe referee, consisting of personal solicitation of tbe beads of departments and members of tbe legislature. No other construction can be placed upon tbe testimony offered on tbe part of tbe plaintiff; and services of this kind have been repeatedly held, in tbe United States courts and in tbe courts of this State, to entitle tbe party to no compensation, because contracts for such services are against public policy and not enforceable in courts of law.

In the case of Mills v. Mills (40 N. Y., 543), it was held that such a contract was void as against public policy, in that it furnishes a temptation to tbe plaintiff to resort to corrupt means or improper devices to influence legislative action.

*614In the case of Sedgwick v. Stanton (14 N. Y., 289), the grounds upon which the invalidity of such a contract rest are set forth with great distinctness and precision. The court say: “ Persons may, no doubt, be employed to conduct an application to the legislature as well as to conduct a suit at law ; and may contract for and receive pay for their services in preparing documents, collecting evidence, making statements of facts, or preparing and making oral or written arguments, provided all these are used or designed to be used before the legislature itself, or some committee thereof, as a body; but they cannot, with propriety, be employed to exert their personal influence with individual members, or to labor in any form privately with such members out of the legislative halls. Whatever, is laid before the legislature in writing, or spoken openly or publicly in its presence, or that of a committee, if false in fact, may be disproved, or if wrong in argument, may be refuted; but that which is whispered in the private ear of individual members is frequently beyond the reach .of correction.”

The particular services for which compensation is sought in this action was for whispering into the ears of individual members of the legislature, “ urging that they take an interest in the passage of the bill, and facilitate its passage as best they could.”

In the case of Lyon v. Mitchell (36 N. Y., 235), the right to employ counsel to appear before a legislative • committee or before the legislature itself to advocate the passage of a measure in which the individual has an interest is recognized. But, it is held that personal solicitation of the president, the governor, or the heads of the departments for favors or for clemency are not the lawful subjects of contracts. The apprehension that considerations other than those of a high sense of duty and of the public interest may thus be brought to influence their determination forbids this employment. And this court in the case of Harris v. Simonson (28 Hun, 318), lays down the rule which must govern in the construction of contracts of the description under consideration with great clearness and force. The verdict was recovered for what was claimed to have been the value of personal services rendered by the plaintiff under the employment of Samuel Wood, the testator, in and about procuring the passage of an act of the legislature.for the incorporation of musical colleges, etc. The court said u claims for services *615■of tlie nature of those alleged to have been performed réquire to be carefully, cautiously and minutely examined in order to avoid the judicial sanction of demands arising out of the exercise of improper and vicious influences over members of the legislature. Some portion of the services relied upon in support of the claim made, consisted in direct appeals to individual members of the legislature. They were not of the character which has been sanctioned, permitting recoveries in cases of this nature, for they were not clearly made to appear to consist of mere information or arguments tending to expedite the proper passage of the act. Such information and arguments are more appropriately directed publicly to the committee as such,.having the bill in charge, or to the body considering the propriety of its enactments. The prevailing principles of law have been very cautiously adopted, upon this subject, for the purpose of avoiding the effect of sanctioning direct or indirect influences brought to bear upon members of a legislative body to secure the passage of an act required to be officially considered by them ; and for that reason it has been held that legislators should act with a single eye to the true interests of the whole people, and courts of justice can give no countenance to the use of means which may subject them to be misled by pernicious importunity and indirect influences of interested and unscrupulous agents or solicitors; and public policy and sound morality did therefore imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every act, the ultimate or probable tendency of which would be to sully the purity or mislead the-■judgments of those to whom the high trust of legislation is confided. To warrant a recovery in such a case as this, the evidence should be required to establish the fact, with'reasonable clearness,, that the services alleged to have been performed were such as the-law will sanction in aiding and promoting legislative action.”

Under the principles thus enunciated it is clear that no recovery can be had for services consisting of personal application to-legislators or other officers of the government. But it may be said' that a recovery may be had for the services rendered in argument's before the attorney-general and comptroller. It is sufficient to say as far as this appeal ’ is concerned, that the judgment was recovered upon the services rendered, which included the personal solicitations' of*616tbe members of tbe legislature by one of tbe plaintiffs. But even if that fact did not exist it would appear from tbe whole nature of tbe transaction that tbe services, such as were expected to be rendered, were of a character which come within tbe definitions already referred to of illegal contracts, being against public policy. Tbe personal solicitation of tbe attorney-general and comptroller was evidently contemplated, and tbe application to members of tbe legislature in furtherance of tbe proposed legislation, was clearly within tbe scope of tbe employment. This being tbe nature of tbe services rendered, there can be no question but that no recovery can be bad therefor, without running counter to every principle which has heretofore been enunciated by tbe courts.

Tbe judgment must be reversed and a new trial ordered, with costs to appellant to abide tbe event.

Judgment reversed, new trial ordered, costs to appellant to abide event.