(— Va. —, 131 S. E. 850.) ciated from their Appeal rules. settings. Virginia consideration gain access to the dock commis- should not be relied upon disassosioner, to the corporation counsel, and finally to the mayor of New York himself, in whom was vested ultimate authority, it was necessary that he be properly vouched for, and nothing is more natural than that he should have gone to men of prominence to secure their aid in this. Without such introduction by men of standing he would no more have had a chance to present his case to the mayor of New York city than he would have had to secure an audience with the Dalai Lama. -for services It is said that in his extremity he associated Mr. McAdoo with him. Mr. McAdoo was a lawyer of prominence in New York city and came near being the can-securing politi- didate of the Democal recognition. cratic party in our last presidential campaign. Surely this was not illegal. It cannot be that this gentleman exerted improper influence, for his fee was paid without question. It is further said that Mr. Hamilton sought and gained the influence of some of the New York papers. His position was that his client was a common carrier, and in a considerable measure aided in the transportation of necessary supplies to the New York market. That New York city was interested in its continuance as a going concern is patent, as is every city in the maintenance of its avenues of trade. These arguments were legitimate, and there was nothing improper in their presentation to the public at large. To -gaining influence of newspapers. day before the Interstate Commerce Commission rests the consolidation of the Chesapeake & Ohio Railway Company with certain other railroads. The press is filled with comments on this, favorable and unfavorable. There is nothing improper in laying the facts before the public; on the other hand, it is eminently proper that it should be done. Certainly the law does not denounce it. In considering evidence, excerpts 46 A.L.R.-13. Mr. Hamilton was a frank witness. In his testimony, which covers forty-four pages of the printed record, there is no suggestion of evasion. He does state that he used every influence possible in good conscience to gain access to those who had power to pass upon his case, and a fair reading of his testimony strongly supports this position; but it must and should be conceded that he makes admissions which, if unexplained, are extremely damaging: "Cross-examination. "Q. You got all the political backing and any other thing you could get to increase your influence in New York? "A. I went to Mr. Smith, Mr. R. H. D. Smith, and he helped me with a Mr. Magill, who is president of the White Rock Water Company, who was very potential in certain quarters in New York, and I had to raise the ire of the mayor against Mr. Walker. Mr. H. B. Walker was connected with the Merchants' Association of New York and was chairman of their harbor committee. The mayor's re-election was up, and one of the things I had to do I had to point out to Mayor Hylan how, in doing this act that I wanted done, he was counteracting what his arch enemy, the Merchants' Association, in control of Mr. Walker, was doing, and I then got Mr. R. D. Smith, who knew some of the ramifications, and who was connected with the Merchants' Association-of course, I am telling tales out of school, but I have to tell them, I suppose-to help me accomplish this end for the Old Dominion Transportation Company and I went to Mr. Smith. I went on two occasions to his home, and he was sick one day when I went there; and he told me to come to his house, and he outlined to me what he thought was wise for me to do and what I had better do to ac complish the end; and Mr. A. Winslow went with me up on Park avenue to Mr. R. H. D. Smith's home, and we had lunch there, and he gave me very potential help in this whole matter, and his guidance was very, very helpful. "Q. Mr. Hamilton, you recognized that you were going up there on a matter that it took a good deal of political pull and backing to make you have a hope of success? "A. It took everything that I could muster. "Q. And you were going to get something that an ordinary man going up there wasn't going to get? "A. That was what Captain Winslow said. "Q. That is what you believed, wasn't it? "A. He said he thought I could do it, and he had given it up. "Q. He thought that he couldn't get something that you, with the backing you could get, could get? "A. There were some other things that convinced him I could do this, and I had the friends and acquaintances that might bring it about by hard work. "Q. Then when you got up there and got all of your political influences at work and got all you could, then that gave you, you say, an entrée which enabled you to believe that you were really going to accomplish your purpose in getting pier 26 away from the steamship company and giving it to the Old Dominion Transportation Company? "A. I did it. "Q. You know you actually did it? "A. There are plenty of others who could have done it, but, if they hadn't done it in the way it was done, they couldn't have done it. "Q. You had to do it by pulling political strings and getting political influence all the way you could to get the Old Dominion Steamship Company ousted and this company put in place of them? "A. Mr. Walker was working was working against me every day, and he was doing the same thing that I was do ing; but I think I got there a little first, although it was very remarkable that I did. "Q. I don't question that at all. Then did they go on and use it after you had accomplished this by pulling political wires and all the personal influence you could bring to bear on the officers of New York? Did the steamship Did the steamship company go ahead and get that pier that they expected to get? "A. Yes, sir." That these admissions are capable of the construction suggested is shown by the question of counsel in cross-examination at the very time they were made: "Q. Then when you got up there and got all of your political influences at work and got all you could, then that gave you, you say, an entrée which enabled you to believe that you were really going to accomplish your purpose in getting pier 26 away from the steamship company and giving it to the Old Dominion Transportation Company?" Nor is it probable that the transportation company thought there was anything wrong about this. It paid Mr. McAdoo's fee and it paid Mr. Hamilton on account $2,000, and not until presented with a bill for $20,000 does it appear to have become alarmed lest public morals be corrupted. On redirect examination this witness testified as follows: "Q. Now, Mr. Hamilton, Mr. Venable has asked you a great deal about the political influence and political strings that you pulled. I would like for you to tell the jury whether the political influence which you brought to bear was necessary for the purpose of getting entrée to these people in New York? "A. It was. "Q. After, by reason of this political influence, you had gotten entrée, and you were up before the mayor and the corporation counsel, did you use any political arguments, or did you use arguments with reference to the rights of the Old Dominion Transportation Company (— Va. —, 131 S. E. 850.) and the effect on New York city and be warranted by the evidence. Norfolk city? "A. I never mentioned politics with the mayor. I had gotten to the mayor. I had gotten his ear then, and he was with me, and I discussed with him on all of the occasions how essential it was for the city of New York to get the foodstuffs; that he was dependent on Norfolk as Norfolk was upon him at that time. If he didn't act and make it possible for Norfolk and the new Norfolk owners of these boats to get a place to land, he would never get the foodstuffs. "Q. Was a similar argument used with reference to other officials? "A. All of them.” These answers on cross-examination and the attempt at rehabilitation of the witness on redirect, made an issue for the jury, and to it, under proper instruction, this issue should have been submitted. If this were not true a redirect examination would be worse than useless. One charged with crime might on cross-examination make statements that could be construed as an admission of guilt. If he were denied an opportunity to explain them, that would end his case. The adequacy of such explanation would be for the jury. Issues raised by more than a scintilla of evidence must be decided in that way. Here it was for it to say whether personal and political influences beyond such as Contracts- were necessary and lawful were brought to bear when the matter was up for decision. If so, there can be no recovery. On the other hand, if there was nothing corrupt in Hamilton's conduct, and if he, when the opportunity finally came, presented his case upon its merits, he is entitled to be paid for his services. -for services The decision of this issue settled the case, and on it the jury should have been instructed. The instruction tendered was too unqualified a statement of the law to It should have been modified by a statement of the character of the influences personal and political which would vitiate a contract or a recovery upon a quantum meruit, and, so modified, it should have been given. It should have told the jury that the contract in evidence Evidence celation of mu is not against public contract to On the other hand, even if the jury believed from the evidence that either personal or political influence was exerted by the plaintiff, but merely to secure a hearing from the city authorities, and an opportunity to present the matter in issue upon its merits, and that when such opportunity was presented the case was presented upon its merits and upon its merits alone, then in that event the jury should have been told that the plaintiff was entitled to a judgment. This case is reversed, and remanded to be retried in accordance with the views here expressed. Christian, J., concurring: I concur in results of the majority opinion. But I do not think that the reasoning therein makes it sufficiently clear that the jury may infer from the nature of the contract and the object to be obtained that personal and political influence was contemplated and exercised. Besides the law therein stated ap plies to lobbying contracts, while this case comes under the rule of law applicable to the use of influence up on officers of the municipality in the discharge of their ordinary business duties. ANNOTATION. Validity of contract to influence administrative or executive officer or department. [Contracts, § 383.] I. Introductory, 196. II. General rules, 197. III. Effect of contingent character of compensation, 203. IV. Illustrations of general rules: a. Cases wherein contracts are held valid, 205. b. Cases wherein contracts are held invalid, 209. V. Contracts for professional services, 214. VI. Contracts to procure pardon, 215. I. Introductory. This annotation excludes from consideration contracts intended, or tending, to influence location of a county seat or public building; questions as to the validity of such contracts are discussed in an annotation in 13 A.L.R. 734. [Contracts, § 299.] Questions as to the validity of contracts for personal services to be rendered in an endeavor to secure public contracts through, or favors or concessions from, public administrative or executive officials, are closely related to the question discussed in the annotation in 29 A.L.R. 157 et seq. [Contracts, §§ 383-388], entitled, "Validity of lobbying contracts." The term "lobbying" is, however, confined to the solicitation of members of the legislature with the view of influencing their vote, and therefore that annotation presents a class of cases entirely distinct from those which will be here discussed, though the validity of both are tested by the same rules. The validity of contracts to secure appointment to public office is discussed in the annotation appended to Walden v. Fallis, 45 A.L.R. 1389. The question whether a contract is against public policy must be determined by its purpose and tendency, and not by the fact that no harm results from it. 6 R. C. L. 707. As pointed out in 29 A.L.R. 158 [Contracts, § 385], public policy requires that the courts should, to shield legislative bodies from corrupt influences, discountenance any contract the object of which is to influence legislation through secret approaches, interviews, or solicitations with the legislators, because of their evil tendency toward corruption, and the consequent fraud on the public; but one may be permitted to contract to appear before the legislature to present openly and fairly the merits of a proposed bill, and urge its passage. See 29 A.L.R. 163. In other words, the law only strikes down those contracts which contemplate the use of secret, sinister influences-those which contemplate that the support of the desired measure shall be secured as a favor from the legislator, induced by personal reasons or friendship, rather than by an appeal to the judgment. There is in reason more basis for upholding contracts to influence the various executive and administrative officers and departments than for upholding "lobbying contracts," socalled, particularly where (and this is the most common instance of such contracts) the contract is an employment to act as agent or representative in an endeavor to secure government contracts. This is true not only because the transaction is one in which an agent would commonly be employed were both principals, private individuals, but also because the official whose favorable action is sought-at least, if the employment is for the purpose of securing a government contract, or making a sale to the government-is charged with the specific duty of letting contracts or making purchases, and in a better position to judge the merits of the agent's proposal, and less likely to be susceptible to personal influence, than would be an individual legislator, who often would not have an opportunity to investigate the merits of a proposed measure. And while the courts often profess to test the validity of contracts to influence administrative officers by the same rules by which the validity of lobbying contracts are tested (see, for example, the reported case OLD DOMINION TRANSP. Co. v, HAMILTON, ante, 186), the actual results reached indicate a greater tendency to uphold these contracts. And this is true notwithstanding the decision of the United States Supreme Court in Providence Tool Co. v. Norris (1865) 2 Wall. (U. S.) 45, 17 L. ed. 868, which in sweeping terms declared all agreements for compensation to procure government contracts void. It will be observed, however, that if the agreement is one deemed to fall within the prohibited class, the courts not only refuse to recognize that any rights may arise out of it while it is executory, but refuse to recognize that any legally enforceable rights may arise in favor of a party who has fulfilled his side of the bargain. In other words, one employed under such an illegal agreement, who accomplishes the end sought, has no standing in court to recover for a deliberate breach by the other party. The stand which the courts take is well illustrated by the language of the Colorado court in Russell v. Courier Printing & Pub. Co. (1908) 43 Colo. 321, 98 Pac. 936, where it is said that while it may not sound well for a defendant to say that a contract which he has deliberately entered into, and of which he has had the benefit, is void because contrary to public policy, it is not for his sake or for his protection that this objection is allowed, but for the protection of the public, by thus preventing such contracts from being made, and avoiding the evils which naturally result therefrom. But it is, to say the least, questionable whether, in denying all aid to a party who has performed his part of the agreement, the courts accomplish the end which they profess to accomplish, of deterring the making of other such contracts. As a matter of fact, instead of being a deterrent, this doctrine very likely tends to promote the making of such contracts by designing persons, who, knowing of it, are able to offer larger inducements to others to influence government officials in their behalf than they otherwise could, and then escape all liability for services performed in their behalf, no matter how important or beneficial to them, by repudiating their contract and setting up its illegality when sued. The only effective way of preventing such contracts from being made would be to forfeit the consideration to the public, which, of course, cannot be done by judicial decision. II. General rules. It is said by the Massachusetts court in Noble v. Mead-Morrison Mfg. Co. (1921) 237 Mass. 5, 129 N. E. 669, that ordinarily no one factor is decisive in determining whether an agreement concerning the securing of government contracts is void as contrary to public policy. Contingency of compensation upon success, percentage upon the amount involved in sales directly to the government, the size of the fee, etc., all are elements entitled to consideration. The tenor of the contract may be such, in connection with its setting, as to stamp it with invalidity, for, if it bears any badge of fraud, either covertly or openly, it must be stricken down. Its legality in each case is to be determined by weighing all the elements involved, and then deciding whether its inherent tendency is to invite or promote the use of sinister or corrupt means to accomplish the end, or to bring influences to bear upon public officials of any other nature than the single one of genuine advantage to the government. Therefore, only very general rules can be laid down by which these contracts are to be tested; and in the |