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Argument for Appellant.
void. 2 Parsons Contracts 6th ed. 919; Marshall v. B. & 0. R. R. Co., 16 How. 314; Harris v. Roof, 10 Barb. 489; Coppeck v. Bower, 4 M. & W. 361; Fuller v. Dame, 18 Pick. 472; Hatzfield v. Gulden, 7 Watts, 152; Gulick v. Ward, 5 Halst. 87.
This court has uniformly held contracts with attorneys for contingent fees to prosecute claims against the Government, either in courts, before the departments, or before Congress, valid where the contracts provided for and the services rendered were only legitimate professional services, and has consistently drawn the distinction between that class of contracts and contracts that contemplate the use and exercise of personal influence or lobby services, or where such influences or services have been rendered. Wylie v. Cox, 15 How. 416; Marshall v. B. &. 0. R. R. Co., 16 How. 335; Tool Co. v. Norris, 2 Wall. 45; Trist v. Child, 21 Wall. 441; Wright v. Tibbets, 91 U.S. 252; Stanton v. Embrey, 93 U. S. 548; Oscanyan v. Arms Co., 103 U. S. 261;. Taylor v. Bemiss, 110 U. S. 42; Ball v. Halsell, 161 U.S. 80; Spalding v. Mason, 161 U. S. 375; Nutt v. Knut, 200 U.S. 12; Kansas Pacific Ry. v. McCoy, 8 Kansas, 359; McBratney v. Chandler, 22 Kansas, 482.
The agreement is not objectionable on the ground of want of mutuality. If it were, it was cured by the election of the appellant to purchase under the contract within the time specified therein, and having notified the appellee of such election and tendered him the purchase money, a contract of sale between the parties was thereby perfected, and a court of equity will decree the specific execution thereof. Young v. Paul, 10 N. J. Eq. 401, 406; Richards v. Green, 26 Connecticut, 536; McFarson's Appeal, 11 Pa. St. 503; Smith and Fleck's Appeal, 69 Pa. St. 474; Grove v. Hodges, 55 Pa. St. 504, 516, 517; Fry on Spec. Perf. $$ 297, 298, 299; Waterman on Spec. Perf., 267, 268, note 1; Willard v. Tayloe, 8 Wall. 557; Brown v. Slee, 103 Wisconsin, 828; Watts v. Kellar, 56 Fed. Rep. 1; 22 Am. & Eng. Ency. of Law 1st ed., 910-913, 925, par. 3; Brewer v. Herbert, 30 Maryland, 301; Sedgwick v. Stanton, 14 N. Y. 289; Raymond v. San Gabriel Co., 53 Fed. Rep. 885.
The wife was not a necessary party. There is nothing in the record to show that the defendant has a wife, much less that she has refused to sign a deed. It is a simple case of repudiation. Barbour v. Hickey, 2 App. D. C. 207, has no application here. At that time the wife was compelled to separately acknowledge the deed. This has been abolished. Section 493, Code D. C. See Young v. Paul, 10 N. J. Eq. 401.
No relief is or could be sought against her. She is not a party to the contract. Fry on Spec. Perf. 299; Wood v. Griffith, 1 Swanst. 55; 2 Story, Eq. Jur. $ 779; Clark et al. v. Reins, 12 Gratt. 98; Cady v. Gale, 5 W. Va. 547, 565. It is true that the deed prepared for the defendant to sign contains the surname of his supposed wife, but it was not necessary to make and tender any such deed. Willard v. Tayloe, 8 Wall. 572.
Mr. J.J. Darlington for appellee:
The agreement sued upon, not being mutually enforcible, was not one to be specifically enforced in equity. Marble Company v. Ripley, 10 Wall. 359. No attempt is made to sustain the burden which the law casts upon an attorney, dealing with his client, to show that the contract was in all respects a fair one, and that the latter's interests were fully protected. Gibson v. Jeyes, 6 Ves. 268; Savery v. King, 5 H. L. C. 655; Hunter v. Atkins, 3 Myl. & K. 113, 135; Dunn v. Record, 63 Maine, 17; Burnham v. Hezelton, 82 Maine, 495.
The jurisdiction for specific performance extends only to cases in which "the specific thing or act contracted for, and not mere pecuniary compensation,” is the remedy or redress necessary to the complainant's relief. Adams Eq. *83.
A contract, not to prosecute before Congress, acting in a quasi judicial capacity, a claim of right, but to seek to obtain from it, in its purely legislative capacity, and for a contingent compensation, a contract of purchase or other advantage or benefit to which the other party to the contract has no legal claim, is against public policy and void.
Of the many instances in which this court, and other courts, have sustained agreements for contingent fees for services before Congress and before the departments, the cases, without exception, involved contracts for the prosecution of claims for the collection of debts. They are, without exception, cases for the prosecution of legal causes of action, tried before courts wherever there were courts possessing the jurisdiction to try them, and before Congress and the departments, where, because of the absence of such jurisdiction in the courts, those bodies were appealed to in a quasi judicial capacity, not to make laws, but to pass upon the merits of money demands, and to award execution or provide for their payment to the extent that they were found just and legal. See Ball v. Halsell, 161 U. S. 80. A claim is "a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty.” Priggs v. Pennsylvania, 16 Pet. 615, and a contingent fee contract with relation to it is legal.
Any agreement for a contingent fee, to be paid on the passage of a legislative act, would be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object. It matters not that nothing improper was done, or was expected to be done, by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use of an extraneous, secret influence over an important branch of the Government. Clippenger v. Hepbaugh, 5 W. & S. 315; Marshall v. B. & 0. R. R. Co., 16 How. 314; Wood v. McCann, 6 Dana (Ky.), 266.
The law meets even the suggestion of evil, and strikes down the contract from its inception. Tool Company v. Norris, 2 Wall. 45; McMullen v. Hoffman, 176 U. S. 648.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a bill for the specific performance of a contract dated
December 11, 1902, to sell for nine thousand dollars, at any time during the then present session of Congress, “and such additional time as may be necessary for settlement under appropriation by that Congress,” part of a lot in a square which Congress now has voted to acquire for the erection of a hall of records. The bill was brought against one Miller. Recently Miller's death was suggested and his heirs and devisees were substituted, but for convenience Miller will be referred to as the defendant.
The contract provided that if Hazelton should “fail to take advantage of and accept this offer as above within the time mentioned, then this agreement shall be null and void.” The bill alleges that a part of the consideration for the contract “was services rendered both before and after the making of said contract, by the plaintiff in bringing the property to the attention of the committees of Congress as a suitable and appropriate site for a hall of records.” It sets forth that the plaintiff, before and after the same date, expended much time, labor and money in rendering those services, and what they were, viz., collecting and printing facts for the information of the committees and members of Congress, making briefs and arguments, and drawing a bill for the purchase or condemnation of the square. The bill passed at the session named in the contract. After its passage the plaintiff negotiated, and finally, in August, 1903, conciuded a sale of the property in question for $14,395.50, subject to examination of the title and arrangements for payment. It is alleged that the time for settlement under the appropriation has not expired. The bill further alleges that the defendant has notified the plaintiff that he does not intend to keep his contract, but means to convey directly to the United States, and to demand the full price agreed upon by the Government. The defendant has tendered a deed to the United States, which has not been accepted. The plaintiff has offered to the defendant a deed to be executed by the latter and his wife, and tendered $9,000, but the defendant has refused to execute the same. There was a general
demurrer to the bill, and this was sustained by the Supreme Court of the District and the Court of Appeals, and the bill was dismissed. The plaintiff appealed to this court.
We assume that the bill sufficiently shows an acceptance of the defendant's offer within the time, although it does not allege it in terms. We assume also that the consideration is alleged sufficiently, subject to the question whether it is one upon which a contract lawfully may be based. But the court is of opinion that that question must be answered in the neg. ative. Every part of the consideration goes equally to the whole promise and therefore, if any part of it is contrary to public policy, the whole promise falls. Pickering v. Ilfracombe Ry. Co., L. R. 3 C. P. 235, 250; Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549; Woodruff v. Hinman, 11 Vermont, 592; Clark v. Ricker, 14 N. H. 44; McMullen v. Hoffman, 174 U. S. 639; Bishop v. Palmer, 146 Massachusetts, 469, 474. According to the bill, and no doubt according to the fact, a part of the consideration was services, as we have quoted, and therefore it is not true, as argued, that the plaintiff could have demanded a conveyance on tendering the nine thousand dollars alone. But the services contempiated as a partial consideration of the promise to convey were services in procuring legislation upon a matter of public interest, in respect of which neither of the parties had any claim against the United States. An agreement upon such a consideration was held bad in Tool Co. v. Norris, 2 Wall. 45. Of course we are not speaking of the prosecution of a lawful claim.
It will be noticed further that the conveyance was in substance a contingent fee. The plaintiff was not bound to accept it and naturally would not do so unless he could agree as he did with the Government for a larger price. The real inducement offered to him was that he would receive all that he could persuade the Government to pay above the sum named. It is true that if we take the inartificial statements of the bill literally the part of the consideration which we are discussing was the services, not a promise to render them. The promise to