Columbus v. Sheehy

delivered the opinion of the Court:

The plaintiff has not declared upon the McCarthy contract. *466He avers that the defendant has received money for his, the plaintiff’s, use. His particulars of demand, wherein the McCarthy contract is set out, merely limits his claim and restricts his proof to the subject-matter therein specified. American Security & Tr. Co. v. Kaveney, 39 App. D. C. 223. The case made amounts to this: A contract was entered into between McCarthy on the one hand and the plaintiff and defendant on the other. On the face of that contract the plaintiff and defendant were jointly interested therein. Plaintiff avers that the $500 retainer fee was paid him, and that he divided this equally with the defendant; that the services called for by the contract were rendered by the plaintiff and defendant, and their contingent fee was earned'; that half of it, $2,500, was paid the defendant, who was jointly interested with the plaintiff; that there was no agreement between the plaintiff and defendant concerning their respective rights under the McCarthy contract except “what appears on the face of that agreement.” In other words, that when the defendant collected the $2,500, one half of it was for the use of the plaintiff. It thus clearly appears that this is not a suit to enforce the McCarthy agreement. The object of that agreement has been accomplished, and is in no way affected by this suit. This is merely an attempt on the part of the plaintiff to compel one jointly interested with him to pay over money received for his use. There is a clear distinction between enforcing an illegal contract, and enforcing a duty not springing from it, but arising solely from the receipt of money or goods. Thus, in Brooks v. Martin, 2 Wall. 70, 17 L. ed. 732, the court said: “The difference between enforcing illegal contracts and asserting title to money which has arisen from them is distinctly taken in Tenant v. Elliott, 1 Bos. & P. 3, 4 Pevised Rep. 755, and Farmer v. Russell, 1 Bos. & P. 296, and recognized and approved by Sir William Grant in Thomson v. Thomson, 7 Ves. Jr. 473, 6 Pevised Pep. 151.” In Planters’ Bank v. Union Bank, 16 Wall. 483, 21 L. ed. 473, it was ruled that, although an illegal contract will not be enforced by courts, yet where such a contract has been executed by the parties themselves, and the illegal object has been accomplished, the money *467or thing which was the price of it may be a legal consideration between the parties for a promise, express or implied, and the court will not inquire as to the origin of the transaction. It therefore will not be necessary for us to inquire whether the McCarthy contract possessed any infirmities.

The defendant avers that he was to receive a retainer of $250 and a fee of $2,500 in the event of success, and that the plaintiff was to receive the same. The McCarthy contract, drawn in defendant’s office, stipulates that “the parties of the second part,” that is the plaintiff and defendant, are to receive a retainer of $500 and an additional fee of $5,000 in the event of success. There is no averment in the defendant’s affidavit that each of these parties was to collect his own fee, and the averment that the plaintiff “acquiesced” in the payment to him is a mere conclusion of law, not supported by the other averments of the affidavit. Tinder the facts stated in plaintiff’s particulars of demand, and admitted in the defendant’s affidavit, these parties really were joint adventurers. As such, they should have been loyal to each other. Receipt of proceeds of the adventure by one party was receipt for the other. Certainly one party ought not to be permitted to secure all the proceeds of the adventure possible to be obtained, and apply this amount to the full satisfaction of his own share, at the expense of the other party. The injured party does not acquiesce in sttch an attempt by making an unsuccessful effort to collect the balance of the expected proceeds of the adventure. Such an attempt on his part is merely evidence of good faith. The concluding averments in the defendant’s affidavit to the effect that he did not make any promise, express or implied, out of which there did or could arise any obligation on his part to pay the plaintiff the amount claimed, is a conclusion of law, and, as suggested of other averments in his affidavit, inconsistent with the admitted facts of the case. We are clearly of the opinion that judgment should have been entered for the plaintiff in the amount claimed.

Judgment reversed, with costs, and cause remanded for further proceedings. Reversed and remanded.