Anderson v. Blair

• Decision Date: 20 June 1918
• Docket Number: 3 Div. 349
• Citation: 202 Ala. 209,80 So. 31
• Parties: ANDERSON et al. v. BLAIR.
• Court: Alabama Supreme Court

80 So. 31

202 Ala. 209

ANDERSON et al. v. BLAIR.

3 Div. 349

Supreme Court of Alabama

June 20, 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill by I.O. Anderson and others against Algernon Blair for a receiver, and to enforce the performance of a contract, and an accounting. From a judgment sustaining demurrers to the bill, complainants appeal. Reversed and remanded.

The allegations are in effect that orators and said Blair made and entered into an agreement, by the terms of which they jointly and collectively agreed that they would use their joint and individual efforts and legitimate influence to obtain from the United States government a contract for the construction of a military camp near the city of Montgomery Ala., which was then in contemplation by said government, and to have same entered into by and between said government on the one part, and said Blair on the other, and, upon procuring the award of said contract, to perform same by the contribution of such of the services, equipment, and organization of said parties, as might be deemed advantageous to the ends sought by the government, and to share in the profits, gains, or commissions arising therefrom; that it was understood that said contract would require the construction of a large number of buildings, the laying of extensive water mains and pipes, and many other things calling for the services and equipment of experienced builders and contractors capable of handling large contracts in the most expeditious manner, and involving a very large amount then unknown, but now known to exceed $1,000,000; and that the contract would not be one to be let on competitive bids as to the price at which the same would be performed, but that it would be let with special reference to the ability of the contractor to enlist in the construction of said camp sufficient forces and equipment to build the same in the shortest possible time, for which compensation would be paid on a commission basis, that is to say, a percentage upon the amount expended by said contractor for the government, and under its supervision in the construction of said camp, which percentage was fixed and advanced by the government; that it was part of said agreement that all of said parties should use their combined efforts, not only to obtain such contract by all legal means, but also to use their services and equipment so far as possible in the performance of everything to be done thereunder, so that the government might get the best possible performance of said contract in the shortest possible time; and that all should participate in the amount received as commissions therefor.

Plaintiff alleges that it was part of their agreement that, as soon as a contract should be awarded to said Blair, he (Blair) should make a fair, equitable, and satisfactory apportionment of the proceeds thereof among the parties interested, and that, in the event any party was dissatisfied with the apportionment so made by him, such apportionment was to be determined by E.B. Joseph and F.J. Cramton; that, after the contract was awarded to said Blair by the officials of the United States government, the said Blair sought to repudiate his said agreement with complainant and it was only after their persistent insistence that he agreed to make any apportionment of the proceeds of said contract between them but did so afterwards, but complainants, being dissatisfied with same, demanded that E.B. Joseph and F.J. Cramton should make an apportionment thereof in accordance with the agreement between the parties, which they did after due notice to defendant Blair, and apportioned the proceeds of said contract as follows: Algernon Blair shall receive $1,500 per month, to be retained by him each month out of said sums before any of the provisions hereinafter set forth shall be made. The balance of said sum, after the deduction of said $1,500, shall be divided in the following proportions Algernon Blair, 30 per cent.; F.J. Cramton, 25 per cent I.O. Anderson, 25 per cent.; James Hodgson, 5 per cent.; D.F. Gorrie & Sons, 5 per cent.; J.O. Estes, 5 per cent.; and Jeffers Brothers, 5 per cent.--of which apportionment, so made by said Joseph and Cramton, defendant Blair was duly notified prior to the filing of this bill. But said Blair has, notwithstanding the agreement above set out, refused and still refuses to recognize the same, and still ignores complainants.

It is then alleged that each of the orators, especially Cramton and Anderson, had made efforts and expended money in seeking to obtain the contract for himself, but after said agreement they withdrew their application and bended all their energies and efforts to have the contract awarded to Blair, and that one of complainants had been informed, by an assistant of the government official having such matters in charge, that said official had just approved the letting of a similar contract for the camp near Atlanta, Ga., to a man who was recommended by many other Atlanta contractors, who would assist in this performance and participate in the commissions to be paid thereunder, and that it was understood by said officials that it was advisable that said complainant and other Montgomery contractors get together and use their combined efforts to get the contract for the Montgomery camp in the name of one of them, and one of said complainants then and there informed said assistant that such a course would be pursued.

It is further alleged that, after the awarding of said contract to Blair, he immediately entered upon the performance thereof, without waiting for the formal contract to be executed, and had one or more of orators to assist him on some parts thereof, but, after the first day, put orators off from time to time when they offered to assist in the performance of said contract until the formal execution of the contract between Blair and the United States government, and that after the formal execution of the contract said Blair began to contend that the character of said contract and the work to be done thereunder made it difficult, if not impossible, for him to use the services and equipment of complainants in the manner contemplated under the agreement among them, and sought to eliminate and to terminate said agreement by offering to pay to a few of complainants trivial amounts in settlement and satisfaction of the interest of complainants in said adventure, all of which were rejected by complainants, who insisted to said Blair that he perform in full said agreement, and that as soon as complainants suspected that said Blair was trying to violate said agreement and deprive complainants of their interest therein, and before said contract between said Blair and the government was fully executed, they notified Col. I.W. Littell, the contracting officer making such contract on behalf of the government, on, to wit, July 26, 1917, and also the constructing quartermaster in charge of said camp construction of their interest in said contract, and of the agreement made by them and said Blair.

The bill also sets up that the work is progressing rapidly, and that Blair is collecting large sums from the government; that he is a man of moderate means (the bill setting out his property); and that a receiver is necessary to take charge of and receive the funds being received by him; that the court may enforce the contract and prevent orators from sustaining an irreparable loss.

Rushton, Williams & Crenshaw, Ball & Beckwith, Hill, Hill, Whiting & Stern, and Steiner, Crum & Weil, all of Montgomery, for appellants.

Horace Stringfellow and W.A. Gunter, both of Montgomery, for appellee.

SAYRE J.

In that aspect of it which needs now to be considered, this is a bill by appellants against appellee for an accounting of the profits earned by appellee in the construction of a cantonment for troops of the United States near the city of Montgomery. The facts alleged will appear in the reporter's statement of the bill as amended. Demurrer to the bill was sustained in the court below, and on this appeal two propositions are relied upon as sufficient, either of them, to sustain that ruling: (1) The alleged agreement between complainants (appellants) and defendant (appellee) was void as against public policy; and (2) said agreement was so indefinite in one of its terms as to be incapable of enforcement by judicial process.

1. Public policy is a phrase of exceeding great generality, and in every case needs definition with reference to the facts involved. Stated with a view to the field in which lies the contract under consideration, the rule of public policy condemns agreements which tend injuriously to affect the public service. Of this branch of the rule more or less familiar examples are found in contracts to use personal influence, as distinguished from professional services, to secure the nomination, election or appointment of any person...