Bowers v. Bowers

• Decision Date: 01 January 1856
• Citation: 26 Pa. 74
• Parties: Bowers versus Bowers.
• Court: Pennsylvania Supreme Court

26 Pa. 74

Bowers versus Bowers.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

F. C. Brewster, for plaintiff in error.—The plaintiff had a right which he could relinquish in favour of another. The consideration was sufficient: 2 Watts 104; 5 Barr 162; 4 Dall. 266; 6 Yerg. 508; 2 Har. & Gill 114; 5 Ham. 471; 1 Bai. 597.

The contract is not forbidden by any statute, and if not repugnant to the principles of public policy, it was error to annul it. It did not violate the precepts of religion or morality, or the rules of public decency: Co. Litt. 206, B. Nor was it like a promise to pay for procuring signatures to a petition for a pardon: 7 Watts 152. Or to procure the passage of an Act of Assembly: 5 W. & Ser. 315. A contract will not be avoided unless it will directly facilitate an illegal transaction: 17 Wend. 170; 11 Ser. & R. 155.

In England, before the statutes prohibiting the sale of public offices, contracts of that kind were sustained: Salk. 468; 5 Barr 456; Roberts's Dig. xxxviii.; 2 Bingh. 252; Cro. Jac. 612; 3 Y. & J. Ex. Rep. 136. It would be inequitable to allow the defendant to retain the profits and refuse compliance with the terms upon which he obtained them.

W. S. Price and G. W. Thorn, for defendant in error.—Such agreements as are here attempted to be enforced are against public policy, and therefore for legal purposes there is no consideration: 5 Barr 452. The issuing of letters is a judicial act, for which the parties could not barter: 7 Watts 51; 1 W. & Ser. 396; 7 Harris 485.

Act of 15th March, 1832, Purd. 705. When the widow renounces, the register exercises a discretion in granting to the next of kin: 4 Harris 110.

All agreements which contravene public policy are void: Story on Con. §§ 545, 546; 1 Story's Eq. Jur. §§ 294 to 305; 4 Bouv. Ins. 181; 5 Barr 452; 5 W. & Ser. 315; 7 Watts 152. It is therefore submitted the Court below was right in arresting the judgment in this case.

The opinion of the court was delivered by WOODWARD, J.

The consideration of the contract sued on was the purchase of the office of administrator from him upon whom the law devolved the right to it, and the only question in the record is, whether that is such a consideration as the law will support? I call it an office, not because it is so strictly, but because it very much resembles one, and is frequently so called in the books. An office is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. An administrator is appointed by a public officer, under his seal of office, to exercise a trust and perform duties which are carefully defined by law, and which affect both public and private interests, and his compensation is measured by legal standards, though not defined in the fee bill. In Beck v. Stitzel, 9 Harris 522, it was held that words were actionable without proof of special damage, which imputed to an administrator "a positive and fraudulent breach of his official oath." If public policy forbids traffic in the office of postmaster, as was decided in Filson's Trustees v. Himes, 5 Barr 456, it will, for superior reasons, interdict barter in respect to the more sacred trust of...