112 N.E. 883 (Ind. 1916), 22,748, Hogston v. Bell

Docket Nº22,748
Citation112 N.E. 883, 185 Ind. 536
Opinion JudgeSpencer, J.
Party NameHogston v. Bell
AttorneyRichard L. Ewbank, Owen W. Dickey and Sturgis & Stine, for appellant. Simmons & Dailey and Ryan, Ruckelshaus & Ryan, for appellee.
Judge PanelSpencer, J. Cox, C. J. Morris, J. Morris
Case DateMay 22, 1916
CourtSupreme Court of Indiana

Page 883

112 N.E. 883 (Ind. 1916)

185 Ind. 536




No. 22,748

Supreme Court of Indiana

May 22, 1916

Rehearing Denied November 10, 1916.

From Wells Circuit Court; William H. Eichhorn, Judge.

Action by Joseph E. Bell against James I. Hogston. From a judgment for plaintiff, the defendant appeals.

Affirmed conditionally.

Richard L. Ewbank, Owen W. Dickey and Sturgis & Stine, for appellant.

Simmons & Dailey and Ryan, Ruckelshaus & Ryan, for appellee.

Spencer, J. Cox, C. J. Morris, J.


Page 884

[185 Ind. 540] Spencer, J.

This is an action to recover for services rendered by appellee in behalf of appellant pursuant to the following written contract between the parties:

"Be It Known by These Presents, That I, James I. Hogston do hereby employ Joseph E. Bell as one of my attorneys to assist in the matter of the contest of the last will and testament of my brother Anderson Hogston, deceased, who at the time of his death was a resident of Grant County in the State of Indiana, and I hereby agree to pay to the said Joseph E. Bell for the services to be rendered by him as such attorney, the sum of Twenty Thousand Dollars, said amount to be paid to him when the litigation in the matter of the contest of said will shall have been ended and determined and I shall have received my portion of the estate of my said brother independent of his said last will and testament. It is further understood that any expenses incurred by the said Joseph E. Bell in the matter of preparing for the trial of such contest shall be paid by him, the said sum of $ 20,000.00 to be in full payment of his said fee for services to be rendered, and also all expenses incurred by him.

"In Witness Whereof, I have hereunto set my hand this 16th day of February, 1911. James I. Hogston."

In seeking to defeat a recovery under a complaint which alleges in some detail the acceptance and [185 Ind. 541] full performance of the agreement on the part of appellee, appellant takes the position that said contract, although fair on its face, in fact contemplated that in carrying out its terms appellee should render certain services which, under the circumstances, were illegal and sufficient to avoid the entire agreement as against public policy. In considering this contention it is important to note briefly the circumstances surrounding the will contest referred to in the above contract. Anderson Hogston, the

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testator, died in the year 1909, leaving an estate of considerable value. In his will he sought to bequeath the greater portion of his property to the "Indiana Board of State Charities" with instructions to "apply the same to such charitable purposes as to such board may appear best within the purpose and scope for which it was created by the State." Appellant thereafter instituted an action in the Grant Circuit Court to contest said will on the ground that the testator was of unsound mind at the time of its execution, but the court held, on demurrer to a plea in abatement, that as a department of the State was a beneficiary under the will, and a necessary party defendant, the action could not be maintained without its consent, and it was subsequently dismissed. Meanwhile appellant had introduced in the general assembly of 1911 a bill for a law which should authorize the contest of a will in which the State, or an officer or department thereof, was named as a beneficiary. This bill had passed the House and was pending in the Senate of the legislature at the time the contract in suit was executed. It subsequently became a law (§ 3154 Burns 1914, Acts 1911 p. 325) and under its provisions suit was brought in the Marion Superior Court by appellee and other attorneys representing appellant, and a [185 Ind. 542] trial had, which resulted in a verdict setting aside the alleged will of Anderson Hogston and left appellant as the owner of decedent's property as his sole heir at law.

The position taken by appellant in asserting that the contract in question is invalid will best appear from a consideration of instruction No. 12 given to the jury by the trial court at appellee's request. This instruction follows: "If you find from the evidence that the contract mentioned in the complaint required the plaintiff to draft a bill or amendment to a bill and to cause the same to be presented to the legislature for enactment into a law, and that the plaintiff did draft such bill or an amendment to a bill, and such bill was presented to the legislature and enacted into a law, and that such contract also required the plaintiff to go before a proper committee of the legislature and advocate a favorable report and the enactment of such a bill into a law, and that the plaintiff performed such services openly and honestly, and that by virtue of such law the superior court of Marion county, Indiana, was given jurisdiction to try and determine the validity of the will of Anderson Hogston, deceased, and that an action to contest said will was instituted in the superior court of Marion county and that a trial was had of such cause on its merits, and said will was set aside and held and adjudged null and void, and that all of the property of the estate of Anderson Hogston was received and accepted by the said defendant, then I instruct you that the said contract mentioned in the complaint and the said services so rendered by said plaintiff were not against public policy and were not illegal."

The principal objection urged against this instruction is that, as applied to the contract in suit it authorizes the recovery of a contingent fee for [185 Ind. 543] services rendered in obtaining the passage of legislation. There can be no doubt that the law is well settled in this and in other jurisdictions that, while contracts for the payment of fixed fees for legitimate professional services rendered before legislative bodies are valid, yet, when the fees are made contingent on success in obtaining the desired results, the contract becomes so tainted with illegality as to render it void. Elkhart County Lodge v. Crary (1884), 98 Ind. 238, 244, 49 Am. Rep. 746; Coquillard v. Bearss (1863), 21 Ind. 479, 83 Am. Dec. 362; Trist v. Child (1874), 21 Wall. (U.S.) 441, 22 L.Ed. 623; Marshall v. Baltimore, etc., R. Co. (1853), 16 HOW 314, 14 L.Ed. 953; Wood v. McCann (1838), 6 Dana 366.

This rule is based on the ground that, when compensation is directly or indirectly contingent on success before the legislative body, it must necessarily encourage and lead to the use of improper means and the exercise of undue influence. As said in the case of Elkhart County Lodge v. Crary, supra, at page 242: "It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public service is void, although the parties entered into it honestly and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular case to ascertain whether they were corrupt or not, but stop when it is ascertained that the contract is one which is opposed to public policy. Nor is it necessary to show that any evil was in fact done by or through the contract. The purpose of the rule is to prevent persons from assuming a position where selfish motives may impel them to sacrifice the public good to private benefit." See, also, Noble v. Davison (1911), 177 Ind. 19, 28, 96 N.E. 325; 6 R. C. L. 735, and cases cited.

[185 Ind. 544] But it must be noted that: "Without minimizing the importance of the doctrine that contracts should not be enforced if they contravene public policy, many courts have cautioned against recklessness in condemning contracts as being in violation of public policy. Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well established rule of law. Other courts have approved the remark of an English judge that public policy is an unruly horse astride of which one may be carried into unknown paths. Considerations such as these have led to the statement that the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt." 6 R. C. L. 710. For similar expressions of the rule last stated, see Corns v. Clouser (1894), 137 Ind. 201, 204, 36 N.E. 848; State v. Johnson, Admr. (1875), 52 Ind. 197, 211; Burley Tobacco Society v. Gillaspy (1912), 51 Ind.App. 583, 591, 100 N.E. 89; Richmond v. Dubuque, etc., R. Co. (1868), 33 Iowa 422; Cole v. Brown-Hurley Co. (1908), 139 Iowa 487, 117 N.W. 746, 18 L. R. A. (N. S.) 1161, 16 Ann. Cas. 846.

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As was said in the case last cited, at page 490 of the opinion: "No court should hesitate to declare void any agreement or contract to corrupt or improperly influence the official conduct of any public servant, but it is an equally sound principle which leads courts to declare that before applying such remedy, [185 Ind. 545] and permitting one who has received a valuable consideration for a promise fair upon its face to escape its performance by pleading the invalidity of his own agreement, such fatal defect therein must be so clear as to be free from doubt. * * * 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 law, which hold every man to a fair and full performance of his contract, ought...

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