Barry v. Capen

• Decision Date: 26 February 1890
• Citation: 151 Mass. 99,23 N.E. 735
• Parties: BARRY v. CAPEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 99

23 N.E. 735

BARRY v. CAPEN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1890

COUNSEL

M.J Creed, for plaintiff.

C.J Noyes and E.B. Callender, for defendant.

OPINION

HOLMES, J.

This is an action upon a special contract to pay the plaintiff, a member of the bar, $1,000 for professional services. When the evidence was all in, the counsel for the defendant asked the court to rule "that the contract of service and the services rendered were in part of such a character as were against public policy and illegal, and thereby vitiated the contract, and that the plaintiff could recover nothing." The court refused so to rule, and found for the plaintiff. The question before us, therefore, is not what we should have found upon the evidence, but simply whether there was no evidence of a lawful contract, so that the court below should have ruled, as matter of law, that the agreement testified to was void. A majority of the court are of opinion that the defendant was not entitled to require such a ruling, because there was some evidence of a contract consistent with public policy.

As the plaintiff recovered upon an express contract, and not upon a quantum meruit, it is not of the first importance to consider what he actually did. That is evidence, no doubt, tending to show what was the contemplated consideration of the defendant's promise, but it is not conclusive. The plaintiff may have rendered illegal services, and yet the defendant's promise may have been in consideration of the plaintiff's promising to perform or performing legal ones only. If the contract was legal, it would not be made illegal by misconduct on the part of the plaintiff in carrying it out. Howden v. Simpson, 10 Adol. & E. 793, 818, 819, 2 Perry & D. 714, 740, 9 Clark & F. 61, 68; BARRETT, J., in Powers v. Skinner, 34 Vt. 274-285. The judge having found that the contract was legal, the fact that the plaintiff did things against public policy, if it be a fact, can be considered only as bearing, by way of illustration, upon the question whether the tendency of the contract necessarily was to induce the doing of such things. If that was its necessry tendency to an appreciable degree, it was void, whether it induced the acts or not.

The plaintiff's statement of the contract is as follows: The defendant came to his office, and said that he had a case which he wished the plaintiff to attend to; that there had been appropriated $25,000 for Talbot avenue, which went through the defendant's land; and that he wanted to have it laid out as soon as possible. The plaintiff asked what the defendant wanted him to do. The defendant answered: "I want you to appear before the street commissioners, and advocate the laying of it out, and the terms of damages." He then stated what damages he thought he ought to get, and offered the plaintiff everything he got over $10,000. The plaintiff declined to do business in that way; whereupon the defendant said: "You go and get as much as you can, and I will pay you a thousand dollars for it." To this the plaintiff assented.

The judge was warranted in finding that a bilateral contract was made in this conversation; that the only services on the part of the plaintiff promised by him or contemplated by either party at that time...