Cole v. Brown-Hurley Hardware Co.
| Decision Date | 29 September 1908 |
| Citation | 117 N.W. 746,139 Iowa 487 |
| Parties | C. C. COLE, Appellant, v. THE BROWN-HURLEY HARDWARE COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JESSE A. MILLER, JUDGE.
ACTION at law for the recovery of rent alleged to be due for damages for injury to the leased premises. Verdict and judgment for defendant, and the plaintiff appeals.-- Affirmed.
Affirmed.
W. C Strock and Hager & Powell, for appellant.
Henry & Henry, for appellee.
On October 4, 1901, the plaintiff let to the defendant by written lease a certain business building on Court avenue, in the city of Des Moines, for the period of two years, at a rental of $ 312.50 per month. In consideration of the agreed rent, the plaintiff undertook, among other things, to wire the building for electric lights and make certain changes and repairs therein, and agreed that the building would be supplied with railroad trackage in the alley at the rear thereof not later than December 31, 1901. This action was begun August 27, 1906. The demand of the plaintiff is stated in three counts. The first count sets up the lease, and alleges that defendant took possession thereunder and paid the agreed rent up to May 1, 1903, but failed and refused to pay the rent thereafter accruing up to the end of the term. The second count sets up the use and occupancy of the building by defendant for a period of two years, avers that such use was reasonably worth $ 312.50 per month, and that defendant has refused to make payment for the period from May 1, 1903, to October 1, 1903. The third count is based on the alleged misuse of the building and fixtures by the defendant and injury resulting therefrom, for which damages in the sum of $ 2,500 are demanded.
Answering the petition, the defendant admits the lease as alleged by the plaintiff, and admits that it has not paid the rent accruing under said lease during the months of May and June 1903. It denies, however, that the premises were of the reasonable value of $ 312.50 per month, but admits there would be due plaintiff $ 529.76 for rent for May and June, 1903, except for the counterclaim pleaded by defendant and hereinafter mentioned. As to the last three months of the term defendant alleges that on or about July 1, 1903, plaintiff sold and conveyed the premises, and with it the right to demand and receive the rents, to C. A. McCune, and that on or about said date it surrendered the leased premises to said purchaser. The alleged misuse of the premises and injury to the building and fixtures are denied. In separate counts the defendant alleges the plaintiff's failure to furnish the railroad trackage as agreed, also his failure to wire the building for electric lights, and asks for damages in the aggregate sum of $ 1,100. To the count of the answer claiming damages for failure to furnish trackage plaintiff demurred on the ground that the contract therefor is against public policy, and therefore void and of no effect. The demurrer was overruled, and error is assigned on said ruling.
In reply to the counterclaim, the plaintiff denies the same, and further pleads that the agreement to furnish railroad trackage to the building could only be carried out by procuring the passage of an ordinance or resolution by the city council permitting said work to be done, and that the agreement was therefore in effect an undertaking to bring sufficient influence to bear upon the city council to secure the desired permission, and is void as being against public policy. This last clause of the reply setting up the alleged void character of the agreement was stricken out on motion of the defendant, and error is also assigned thereon.
At the close of the evidence, the trial court instructed the jury, among other things, that the failure of plaintiff to furnish railroad trackage as agreed was such a violation of the contract that defendant was entitled to recover upon its counterclaim such damages as the defendant thereby sustained. The jury found generally for the defendant, thereby evidencing its allowance of the counterclaim to an extent equal to the unpaid portion of the rent. While other points were raised on the trial, and are suggested in appellant's abstract, the only one which counsel have argued has reference to the alleged invalidity of the contract to furnish trackage for the use of the rented premises. We shall, therefore, confine our attention to the question thus presented: Is the agreement here under inquiry so clearly against public policy that we should declare it void? The plaintiff, owning a business block, the use of which would be materially more valuable if furnished with railway trackage to its rear door where freight could be received directly from and delivered to the cars without loss of time or expense of drayage, leased the premises for a period of two years at a rental which was fixed with reference to and in consideration of his promise to furnish this convenience. He has not furnished it. So far as the record shows, he has made no request of the railway company to lay its track along the alley, or any application or request to the city council to permit it to be done, and we are called upon to say that his agreement so far involves the possibility of undue influence and improper solicitation brought to bear upon the city council to affect its legislative proceedings that we must hold it void for considerations of public policy. 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, 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. Richmond v. Railroad Co., 26 Iowa 191; Barrett v. Carden, 65 Vt. 431 (26 A. 530, 36
Am. St. Rep. 876). No one has stated the general rule in this respect in clearer or more satisfactory terms than were employed by the plaintiff in this case when as a member of this court he prepared the opinion in the Richmond case, above cited. Speaking of the authority of the courts to declare a contract invalid on the ground here contended for, that opinion says: "But, further than this, the power of 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." This statement has often been quoted with approval by the courts of other States, and, so far as we are aware, its correctness has never been questioned. 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.
In Kellogg v. Larkin, 3 Pin. 123 (56 Am. Dec. 164), Mr. Justice Howe, discussing the same general question, justly remarks: "But I insist that, before a court should determine a contract which has been made in good faith stipulating for nothing that is malum in se, nothing that is malum prohibitum, to be void as contravening the policy of the State, it should be satisfied that the advantage to accrue to the public from so holding is certain and substantial, not theoretical or problematical, and I submit that he is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public, as that is the best government which guards more vigilantly the freedom of the subject than the rights of the State." In Richardson v. Mellish, 2 Bing. 229, Sir James Burrough is quoted as saying: Indeed, without extending citations, it may be said that the consensus of judicial opinion as expressed in the cases is that the power to invalidate commercial and business agreements on the grounds of public policy is so far reaching and so easily abused that it should be called into action to set aside or annul the solemn engagements of parties dealing on equal terms only in cases where the corrupt or dangerous tendency clearly and unequivocally appears upon the face of the contract itself, or is the necessary inference from the matters which are expressed. The only apparent exception to this general rule is to be found in those cases where the contract, though fair and unobjectionable upon its face, is a part of a corrupt scheme, and is made to disguise the real nature of the transaction.
Turning directly to the contract before us, we find not the slightest suggestion of an agreement on part of the plaintiff to secure the laying of a railway track to the door of his building by corrupt means or improper solicitation directed to the public authorities. There is no suggestion or promise that he will apply to the city council for the necessary permission to lay such track. True, under our statute, a public street or alley cannot be used for such purposes without the consent of the council; but there is absolutely...
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