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 1. ed. 320; Stanton v. Embrey, 93 U. R. 548, 23 L. ed. 983; Taylor v. Hemiss, 110 U. S. 42, 28 L. ed. 64. 3 Rup. Ct Rep. 441. The reason for upholding the validity of such confracts was stated by Mr. Justice Miller in the case just cited. said: "The well-known difficulties He 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 ac complishment." 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 TRANSP 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 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 where for personal public policy is Contractsplainly 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 policy 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- agent for purchaser. An agent to sell a farm at a given price cannot afterwards become the agent of the purright to become chaser 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 lawful contract unlawful. There must dental illegal be some attendant sinister suggestion that goes to the heart of the case. Influence may be good or evil: "To lobby' with department officials Contracteffect of incl 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 MeKeller, 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 (Va. - 131 S. E. 850.) gain access to the dock commis- should not be relied upon disasso sioner, 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. Tonewspapers. 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 -gaining influence of 46 A.L.R.-13. ciated from their consideration settings. Virginia Appeal- rules. 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 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 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 |