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$18,000 was refused and this action instituted, terminating, as we have seen, in a judgment for him in the sum of $10,000.

The plaintiff asked for one instruction which was given. That instruction is as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff was employed by the defendant as claimed by him, and that he performed the services for which he was employed, and if they further believe from the evidence that the amount which was to be paid the plaintiff by the defendant was not agreed on in advance and has never been agreed on, then, if they find for the plaintiff, they should fix the amount of his damages at what they think, under all of the facts and circumstances disclosed by the evidence, the plaintiff is reasonably entitled to receive for the services rendered, in addition to the amount which he has already been paid, if, they shall believe he is entitled to recover any additional amount and in arriving at this amount they should consider, among other things, the importance to the defendant, at the time, of obtaining pier facilities in New York, the amount of the money or the value of the property to be affected, the amount and character of the services rendered, and the diligence, skill, and effectiveness of the service which was rendered by the plaintiff." This is the basis of the first assignment of error.

The error charged is that it tells the jury they should consider in arriving at their verdict, among other things, "the importance to the defendant, at this time, of obtaining pier facilities in New York;" that it makes the measure of the services rendered depend upon the necessities of the defendant and the value of such services to him and not upon the reasonable value of services in themselves.

The elements to be considered in a recovery of this character are stated by Judge Sims, in Campbell County v. Howard, 133 Va. 19, 112 S. E. 876: It "is the reasonable

value of the services rendered, not in benefit to the client, but in themselves on a quantum meruit, and that the circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered; the responsibility imposed; the labor, time and trouble involved; the character and importance of the matter in which the services are rendered; the amount of the money or the value of the property to be affected; the professional skill and experience called for; the character and standing in their profession of the attorneys; and whether or not the fee is absolute or contingent, it being a recognized rule that an attorney may properly charge a much larger fee where it is to be contingent than where it is not so. The result secured by the services of the attorney may likewise be considered, but merely as bearing upon the consideration of the efficiency with which they were rendered, and, in that way, upon their value on a quantum quantum meruit, not from the standpoint of their value to the client."

It must be conceded that this instruction emphasizes the importance of the results to the client rather than the importance of the transaction in itself.

The value of services to the defendant measured by its necessities is not necessarily

for services

the measure of the Damagesvalue of the services in securing in themselves. All ities. that a man hath will

terminal facil

he give for his life; but counsel who successfully defends a millionaire. client charged with murder cannot take his entire estate. In such a case the value of services to the client is not the measure of the recovery. If he were to collect for this same client a simple account the value of the services and their value to the client would probably be the same and the value of the services to him might well be the measure of the recovery.

Since for other reasons this case

( Va., 131 S. E. 850.)

must be remanded for a new trial, this instruction should be reformed to conform more closely with the distinction drawn by Judge Sims in the Campbell County Case.

The second assignment of error is based upon the action of the court in refusing to give instruction No. 3 for the defendant: "The court instructs the jury that neither personal nor political influence is a vendible article in our system of laws and morals, and, if you believe from the evidence that the plaintiff used his personal and political influence to secure from the officers of the city of New York the use of pier 26 for the defendant or to secure a lower rental of pier 31 for the defendant than could have been secured by an ordinary business man without any special personal or political influence, then the courts of this commonwealth will not assist him in securing compensation for such services, and your verdict should be for the defendant."

The last assignment is to the action of the trial court in refusing to set aside the verdict of the jury. These two assignments are so interwoven that they will be dealt with

as one.

To understand them, it is necessary to state the facts which these litigants claim are established by the evidence. We do this briefly. For the defendant it is said that Hamilton was collector of the port at Norfolk appointed by Mr. McAdoo at a salary of $5,000 a year; that he secured through political influence a furlough from his official duties; that he went to Washington and obtained letters of introduction from prominent politicians there to politicians in New York, Mr. Hearst included; that he secured the publication of propaganda in newspapers in that city, interested himself in the re-election of Mayor Hylan, retained Mr. McAdoo as counsel, and in every way sought to exercise on the powers that were personal and political influence.

For the plaintiff it is said that he was a man of intelligence, wide

awake, and resourceful, and was for that reason retained; that the existence of the transportation company was at stake and large public. and private interests involved; that he armed himself with such letters of introduction as were calculated to procure for him a hearing; that all that was done in New York was for the purpose of securing such a hearing, of gaining access to those with whom final judgment rested; and that when such access was finally secured he presented his case upon its merits and upon its merits alone.

This instruction No. 3 is undoubtedly a correct statement of a general principle, but, like every instruction, it must be read in connection enforcement Contractswith the evidence -political in the case. A witness must tell, not only the truth, but the whole truth. Neither personal nor polit

services.

Trial

of instruction.

ical influence is a interpretation
vendible article.
Now does this proposition apply to
the case in judgment; and what is
there illegal about Hamilton's con-
duct? What was the character of
this contract, and was it invalid on
its face?

In Smyth Bros. v. Beresford, 128 Va. 137, 104 S. E. 371, the following authorities are quoted with approval:

"An intention to violate law or morals is not to be presumed.' Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784.

"The law does not presume that parties to a contract intend by it to accomplish an illegal object, but it rather presumes that they intended to accomplish a legal purpose.' Elliott, Contr. § 1065.

"The law will not presume, unless it is forced to do so, that a person intends to do an illegal act. It will not therefore presume that the parties intended to make an illegal contract. Richards v. Ernst Wiener Co. 207 N. Y. 59, 100 N. E. 592, affirming 145 App. Div. 353, 129 N. Y. Supp. 951.

"As tending to indicate the immorality of a contract the contin

gent character of the fee works no such result.' Bergen v. Frisbie, supra.

"In view of these citations, affording the appropriate rule of interpretation for an instrument sought to be impressed with the implication of an unlawful purpose, the language of the plaintiff's letter, cited supra, was properly construed to express an innocent intent.

"As was said in Brightman v. Bates, 175 Mass. 105, 55 N. E. 809, the question before us is not whether or not it would be possible to carry out the contract in a way which would have made the contract bad, if specified in it, but whether it was impossible to carry out the contract in a way which might lawfully have been specified in advance.' Carnegie Trust Co. v. Security L. Ins. Co. 111 Va. 1, 31 L.R.A. (N.S.) 1186, 68 S. E. 412, 21 Ann. Cas. 1287."

We therefore start out with the clear assumption that the transaction in judgment was lawful. There was nothing upon its face which made it unlawful, and the fact that the fee was contingent brought about no such result.

Evidencecontractassumption

of validity.

In Stansell v. Roach, 147 Tenn. 183, 29 A.L.R. 143, 246 S. W. 520, an instructive case, the court said: "It is said by counsel for the defendant that the case just referred to is one of the recognized cases of pure professional services. That is unquestionably true, but this and the other similar cases emphasize the rule that contingency in the compensation for services contained in an agreement does not of itself vitiate the contract, nor does it necessarily involve the implication of undue influence. Wright v. Tebbitts, 91 U. S. 252, 23 L. ed. 320; Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983; Taylor v. Bemiss, 110 U. S. 42, 28 L. ed. 64, 3 Sup. Ct. Rep. 441. The reason for upholding the validity of such contracts was stated by Mr. Justice Miller in the case just cited. He said: "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.""

See also Nutt v. Knut, 200 U. S. 13, 50 L. ed. 348, 26 Sup. Ct. Rep. 216.

Many cases hold that a legal contract will not be made illegal by misconduct on the part of the plaintiff in carrying it out.

In Stansell v. Roach, supra, the court said: "This contract is to be decided, not by what unlawful means may have been used to bring about a just and honest result, but whether by its terms it necessarily implies the use of unlawful means in its accomplishment."

2 Page on Contracts, § 663, says: "The illegality or validity of a contract is to be determined by its tendency as the parties make it, and not by its actual results as the parties perform it. If it can, by its terms, be performed lawfully, it will be treated as legal, even if it is actually performed in an illegal manner, or even if one of the parties intends illegal performance; and still more, if illegal performance is merely possible.'

2 R. C. L. p. 1041, states the law to be: "In contracts between attorneys and clients the usual test would seem to apply that if a contract can, by its terms, be performed lawfully, it will be treated as legal, even if performed in an illegal manner; while, on the other hand, a contract entered into with intent to violate the law is illegal, even if the parties may, in performing it, depart from the contract and keep within the law."

In Barry v. Capen, 151 Mass. 99, 6 L.R.A. 808, 23 N. E. 735, Holmes, J. said: "If the contract was legal, it

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( Va., 131 S. E. 850.)

would not be made illegal by misconduct on the part of the plaintiff in carrying it out. Howden v. Simpson, 10 Ad. & El. 793, 818, 819, 113 Eng. Reprint, 300, 2 Perry & D. 714, 740; Simpson v. Howden, 9 Clark & F. 61, 68, 8 Eng. Reprint, 338; Barrett, J., in Powers v. Skinner, 34 Vt. 274, 284, 285, 80 Am. Dec. 677."

See also Bush v. Russell, 180 Ala. 591, 61 So. 373, Hogston v. Bell, 185 Ind. 536, 112 N. E. 883, and Armour & Co. v. Jesmer, 76 Wash. 475, 136 Pac. 689.

On the other hand, Professor Williston, in his work on Contracts, § 1761, says: "It has been said that 'there is no policy of the law against the plaintiff's recovery unless his contract was illegal, and a contract is not necessarily illegal because it is carried out in an illegal way.' It is submitted that if this statement is made as a general principle it is unsound. The illegality of the plaintiff in relation to the contract is the vital test, not merely the character of the contract. It is true that not every illegal act in performing a contract will vitiate recovery; thus, if a carpenter in building a legal fence commits a trespass, this will not preclude recovery for the fence, but, if the performance rendered by the plaintiff is something in itself forbidden by law to be rendered, the facts that the contract was in such general terms as to cover either such illegal performance or a lawful performance, and that both parties originally had no intention to have the performance unlawful, will surely not justify a recovery on the contract for the price of the unlawful performance. An agent can recover no commissions for negotiating a contract or sale by illegal means, though his contract with his principal did not specify the means to be employed, and his case would not be helped by proving that the principal or that both the principal and he himself originally expected legal means only would be employed. It would be a novel public policy which would deny recovery against a wrong-doing principal where both

parties

I had an evil intent, and would allow recovery against an innocent principal when the plaintiff is equally guilty in both cases. Not the illegality of the contract, but the illegality of the plaintiff's conduct either in entering into or in performing the contract, is the true ground for denying recovery." See also § 1630.

In the main cases cited in support of this view of the law are those in which the contract itself was illegal. The leading case on that subject is Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 26 L. ed. 539.

On principle, we are of opinion that there should be no recovery in cases where fraudulent devices were adopted or or where

for personal

public policy is Contracts-
plainly violated. services-when
The reasons which nied.
lead to this conclu-

recovery de

sion are more compelling when the action is for services rendered and not on a contract performed. Barry v. Capen, supra.

It is clear that one cannot come into court and say, "I have done an evil thing for you; pay me for it;" but this distinction in the instant case is not of first importance. Plaintiff's motion is a simple statement that on a certain day he will move the court for judgment in a certain sum. An account seems to have been attached, but it is not copied into the record. The evidence shows this motion to be based upon contract. All left open was the sum to be paid for the contract work. Had that been stated, and had this been an action on that express contract, still no recovery could be had, should it appear that corrupt devices had been adopted or public policy plainly violated. It is "the illegality of plaintiff's conduct, not the nature of the transaction" that prevents a recovery. Williston, Contr. § 1630. Upon this same evidence the same results follow if this motion be treated as an action on quantum meruit. In each instance it is "the

illegality of plaintiff's conduct" that prevents a recovery. We must look to the character of the service rather than to the form of action.

A statement of the law, sound in principle and measurably calculated to reconcile the apparent conflict of authority heretofore noted, is contained in Swan v. Scott, 11 Serg. & R. 155, where it is said: "The test, whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. If a plaintiff cannot open his case, without showing that he has broken the law, a court will not assist him, whatever his claims, in justice, may be upon the defendant; and, if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the

forbidden contract."

Hamilton's conduct is not charged to have been corrupt, but it is said that it does violate public policy. Public poliey can no more be accurately defined than can due process of law. As Sir James Burroughs wisely observed, it is "a very unruly horse."

Brokers

right to become

agent for purchaser.

An agent to sell a farm at a given price cannot afterwards become the agent of the purchaser as well, and if he does so, and fails to bring this to the attention of his original employer, he cannot recover on his contract. For a stronger reason, such an agent could not recover for services performed if he induced his principal to take less than the sum originally agreed upon, however innocent he may have been of double-dealing in the beginning, and however free from taint his original contract may have been. It is equally clear, and the authorities which we have cited sustain the proposition, that incidental acts of illegality do not render a

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for a contract, as alleged in those pleas, does not necessarily imply corruption, but it carries nevertheless a certain commonly understood suggestion of sinister purposes. It does imply a form of personal solicitation which tends to corruption, and is for that reason forbidden. But 'influence' is a much broader term. Standing alone, its moral and ethical implications are indifferent. They may be good or bad. The methods of influence may be legitimate or illegitimate. To say, then, that plaintiff promised to influence' the officers of the government, without more, meant nothing. An intention to violate law or morals is not to be presumed." Bush v. Russell, 180 Ala. 590, 61 So. 373.

In Barry v. Capen, supra, the plaintiff was chairman of the Democratic city committee and appeared frequently before the street commissioners of his town. There the political influence was, of course, incidental, and a recovery was sustained. In Stansell v. Roach, 147 Tenn. 183, 29 A.L.R. 143, 246 S. W. 520, Stansell in company with his client first went to Washington and laid his claim before Senator McKeller, whose constituents they were, and sought his assistance. Of course they went to see Senator McKeller because he was a man of political influence. There was no one else for them to see. Congress does not hold court; and, unless a claim is laid before some individual member of that body or before its committees, a petitioner cannot be heard at all, and so such a resort to personal and political influence is not unlawful. It only becomes unlawful when in its last analysis, that influence rather than the merits of the case is relied upon for a recovery.

Coming back to the case in judgment, the inquiry necessarily arises: What particular illegal thing did Hamilton do?

It is said that before he went to New York he armed himself with letters of introduction to prominent politicians. In order for him to

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