(Va 131 S. E. 850.) and the effect on New York city and 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 to secure municipal lease -validity. 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 -collateral use of political infiaence. 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 be warranted by the evidence. 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 policy nor illegal on procure canits face, and that nicipal lease the burden of show-validity. ing it to be against public policy or illegal was upon the defendant, unless either of these infirmities appear from the plaintiff's own testimony. When the defendant had shown this by a preponderance of the evidence, the plaintiff could not recover. It should further have told the jury that, if it believed from the evidence that either personal or political influences were brought to bear, and that the city authorities were asked to decide the controversy in favor of the transportation company for personal or political reasons, there could be no recovery. 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 and economical mode of meeting the public wants should alone control, in this respect, the action of every department of the government. No other consideration can lawfully enter into the transaction, so far as the government is concerned. Such is the rule of public policy; and whatever tends to introduce any other elements into the transaction is against public policy. That agreements like the one under consideration have this tendency is manifest. They tend to introduce personal solicitation and personal influence as elements in the procurement of contracts, and thus directly lead to inefficiency in the public service, and to unnecessary expenditures of the public funds." And the court concludes by saying: "All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation by refusing them recognition in any of the courts of the country." However, it was pointed out in Noble v. Mead-Morrison Mfg. Co. (1921) 237 Mass. 5, 129 N. E. 669, that in the Providence Tool Co. Case the agent contracted solely for "concentrating influences at the War Department," through senators and other persons supposed to possess it, for the purpose of securing government contracts, and that that was the single object of his exertions; and it was said that manifestly such contract is illegal, both upon its face and in the means naturally and in truth intended to be used in its performance. And the doctrine of the case does not seem ever to have been carried to the fullest extent of denying the validity of this character of contracts, as the language of the opinion would justify. And it was said in Lyon v. Mitchell (1867) 36 N. Y. 235, 93 Am. Dec. 502, that "the decision in Providence Tool Co. v. Norris (U. S.) supra, confounds a sale or traffic openly made by an avowed agent to a party wishing to purchase, with the forbidden case of an interference with legislative action or executive clemency, where the party does not profess to act upon commercial principles. There is a manifest difference in the principle governing the cases. I think that case was not well considered, and cannot adopt it as an authority for the present [case]." In the Lyon Case it was held that a contract employing an agent, upon a contingent compensation, to sell ships to the United States government, was not void on the ground of public policy. In Jamieson v. Illes (1920) 219 Ill. App. 432, the broad rule was laid down that no binding obligation attaches to the promise of compensation for influence or help in obtaining for another, from a public body, such as the county commissioners, a retainer as its attorney to render specified legal service. As a matter of fact it appeared that the agent was engaged after the attorney who desired to be retained had been unable to secure the contract from the board, and for "that reason" he went to the agent, who was on friendly terms with a number of county officials, and had considerable political influence, and who succeeded in getting the contract from the board. The only reasonable inference from these facts would be that the parties contemplated that the agent should exercise his political influence in obtaining the contract. However, the court does not seem to base its decision on this fact; it is said: "It is a high standard of ethics, and does not yet obtain in the domain of general commerce where all the participants are engaged in business solely for private profit. But, from time immemorial, it has been the law as to all dealings with official representatives of the people. What the complainant did may have been entirely innocent and for the public good, but for fear that in rendering such services the temptation might induce evil doing, the law has deemed it wise to rule that such services may never be sufficient consideration for a promise to which a legal obligation attaches. There is not a scintilla of evidence that any wrongdoing was contemplated or occurred, but that does not change the rule of law, nor avoid its application." On the other hand, it is recognized that one desiring to sell something to the government, or desiring to secure government contracts, may employ another to act as agent in making the sale or putting in bids for the contract; and if the contract does not by its terms, or by necessary implication, require or contemplate the use of corrupt means, and the parties did not enter into it with reference to actual or supposed influence which the agent had with the public officials through whom the negotiations would have to be made, it is enforceable at law. Alabama. Bush v. Russell (1913) sumptions in human affairs are in favor of innocence rather than of guilt applies in testing these contracts. Houlton v. Nichol (1896) 93 Wis. 393, 33 L.R.A. 166, 57 Am. St. Rep. 928, 67 N. W. 715. See also the reported case (OLD DOMINION TRANSP. Co. v. HAMILTON, ante, 186). As said by the Iowa court: "So long as the corrupting or impolitic character of the agreement is not so clear as to be readily apparent to the intelligent and impartial mind, the just principles of the law, which hold every man to a fair and full performance of his contract, ought not be made to yield to any doubtful construction of that somewhat variable and altogether undefined thing which we call public policy. While protecting the interests of the public, the rights and interests of individuals are not to be unnecessarily sacrificed." Cole v. Brown-Hurley Hardware Co. (1908) 139 Iowa, 487, 18 L.R.A. (N.S.) 1161, 117 N. W. 746, 16 Ann. Cas. 846. It is legitimate to lay before officers of the government authorized to contract such information as may apprise them of the character and value of the articles offered, and enable them to act for the best interests of the country; and for such services compensation may be had, as for services with similar private parties, where a sale is effected, by ordinary brokerage commission. Oscanyan v. Winchester Repeating Arms Co. (1881) 103 U. S. 261, 26 L. ed. 539; Allison v. Dodge (1923; C. C. A. 3d) 287 Fed. 621. There is no rule of law which makes it illegal to negotiate a contract for the sale of goods or supplies to a public agency and for public purposes, if the only services performed are in acquainting the officials with the merits of the merchandise desired to be sold. Lewy v. Standard Plunger Elevator Co. (1920) 218 Ill. App. 306, affirmed in (1921) 296 Ill. 295, 129 N. E. 775. It is an employment which in many cases is peculiarly liable to abuse, and which therefore should be narrowly watched, but it is not necessarily illegal or against public policy. Winpenny v. French (Ohio) supra. The rule of law applicable may be |