Brady v. Yost

• Decision Date: 03 December 1898
• Parties: BRADY v. YOST
• Court: Idaho Supreme Court

55 P. 542

6 Idaho 273

BRADY v. YOST

Supreme Court of Idaho

December 3, 1898

PUBLIC INTEREST-CONTRACT.-B. entered into a contract with Y. for the purchase of the material and fixtures constituting the newspaper publishing plant of the "Silver Blade" newspaper, and as a part of the consideration agreed to obtain for Y. the contract to publish certain classification lists of mineral lands. And Y. on his part agreed to bid for the county printing of Kootenai county, and in case he was awarded said printing, he would assign the contract to B provided B. complied with his part of said contract and purchased said newspaper plant. B. performed all the conditions of said contract agreed to be performed by him and Y. thereupon refused to turn over said property to B., on the ground that said contract was contrary to public interest or policy, illegal and void. Held, under the facts of this case said contract was legal, valid and not in conflict with public interest.

ILLEGAL CONTRACT.-Any agreement respecting public contracts to be awarded on bids which tends to deprive the people of the advantage of competition in bidding is unlawful and void.

SPECIFIC PERFORMANCE.-A court of equity will decree a specific performance of a contract for the sale of chattels when damages at law will not afford a complete and adequate remedy.

SPECIAL FINDINGS BY JURY.-In equity suits the specific findings of a jury are advisory only. The court may disregard such findings when they are clearly against the evidence. Section 4396 Revised Statutes, recognizes a distinction between law and equity.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Affirmed. Costs of this appeal awarded to the respondent.

Charles L. Heitman, for Appellant.

Where one copy of a contract which is to be executed in duplicate has been signed by the parties, but is left with the attorney of one party to have a duplicate executed, there is not a sufficient delivery of the instrument to constitute a contract. (Lamar Milling etc. Co. v. Craddock, 5 Colo. App. 203, 37 P. 950.) Every new contract seeking to carry out or enforce any of the unexecuted provisions of a former illegal contract is void. (Gray v. Hook, 4 N.Y. 450; 3 Am. & Eng. Ency. of Law, 887; Comstock v. Draper, 1 Mich. 481, 53 Am. Dec. 78; Moffatt v. Bulson, 96 Cal. 106, 31 Am. St. Rep. 192, 30 P. 1022.) It is well settled that any agreement to attempt, for a compensation, to influence a public officer in the performance of a duty, or the execution of a power, is contrary to public policy, and therefore, illegal and void. (Tool Co. v. Norris, 2 Wall. 45; Oscanyon v. Arms Co., 103 U.S. 261; 3 Am. & Eng. Ency. of Law, 877; 9 Am. & Eng. Ency. of Law, 908, 915; Clippinger v. Hepbaugh, 5 Watts & S. 315, 40 Am. Dec. 519; O'Hara v. Carpenter, 23 Mich. 410, 9 Am. Rep. 89; Brooks v. Cooper, 50 N. J. Eq. 761, 35 Am. St. Rep. 793, 26 A. 978.) An agreement whose object is to induce any officer of the state to act partially or corruptly is void. (3 Am. & Eng. Ency. of Law, 877.) An agreement which has a tendency that way is void. (O'Hara v. Carpenter, 23 Mich. 410, 9 Am. Rep. 89.) It is well settled that any agreement, respecting government contracts to be awarded to the lowest bidder, which tends to deprive the government of the advantage of competition in the bidding is unlawful and void. (Swan v. Chorpeming, 20 Cal. 182; Brooks v. Cooper, 50 N. J. Eq. 761, 35 Am. St. Rep. 793, 26 A. 978; Hunter v. Pfeiffer, 108 Ind. 197, 9 N.E. 124; Boyle v. Adams, 50 Minn. 255, 52 N.W. 860; Brisbane v. Adams, 3 N.Y. 129.) The correct manner of presenting issues of fact in cases of chancery to the jury is now well established to be by interrogatories and the interrogatories should cover all material questions in dispute. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45.)

W. W. Woods, for Respondent.

Appellant claims that equity will not decree specific performance of a contract relating to chattels, citing 3 Pomeroy's Equity Jurisprudence and other authorities. This is true as a general proposition, but the exceptions are provided for so plainly as to leave no doubt as to the class of cases in which specific performance will be decreed as a matter of course by a court of equity. (Pomeroy's Equity Jurisprudence, sec. 1404; Treasurer v. Com. M. Co., 23 Cal. 391; 2 Kent's Commentaries, 9th ed., 661; 2 Story's Equity Jurisprudence, sec. 717; Senter v. Davis, 38 Cal. 450.) The contract in the present case, as well as the means by which it was executed, were in no sense illegal or in conflict with public interest. (Stanton v. Embry, 93 U.S. 543; Salinas v. Stedman, 66 F. 677; Twist v. Child, 21 Wall. 441; Cheeseborough v. Conover, 140 N.Y. 382, 35 N.E. 633.) This action is equitable for specific performance of contract relative to chattels. Section 4369 of the Revised Statutes of Idaho does not change the rule in equity that in such an action the findings of a jury are advisory to the court. In this class of actions the findings of the jury being advisory, the court, sitting as chancellor adopts, rejects, modifies, ignores or makes new findings. The fact that this suit was tried with an advisory jury would imply, in the strongest terms, that a general verdict was waived. Unless the contention urged by appellant in this court upon this point had been made in the court below it could not be presented to or considered by this court. There is nothing in the record by bill of exceptions or otherwise to indicate that this matter was ever presented to the trial court. (Darby v. Heagerty, 2 Idaho 282, 13 P. 85; Heilner v. Brown, 2 Idaho 263, 12 P. 903.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is a suit in equity, wherein the respondent, who was the plaintiff in the court below, seeks to compel the specific performance of a contract of sale for the newspaper plant known as the "Silver Blade," which is situated at Rathdrum, Kootenai county. The complaint contains the necessary allegations, and pleads the contract in haec verba. The contract is as follows:

"Made this tenth day of February, 1897, between John F. Yost, of Rathdrum, Kootenai county, Idaho party of the first part, and J. C. Brady, of Rathdrum, Kootenai county, Idaho party of the second part, witnesseth: That the said party of the first part, in consideration of one dollar cash in hand to him paid by the second party, and of the covenants hereinafter mentioned, hereby agrees to grant, bargain, sell, and convey to said party the following described property, to wit: All the material and fixtures appertaining to the office of the 'Rathdrum Silver Blade,' and used in the publication and printing of said newspaper, which said material is located in Rathdrum, Kootenai county, Idaho and is the property of said first party according to an inventory of said property given by said first party to said second party, with inventory hereto attached, and marked 'A.' The terms of said sale shall be as follows: $ 700 payable on or before the delivery of possession by first party to said second party of the property mentioned herein, and $ 500 payable within one year hereafter, which said payment of $ 500 shall be secured by a promissory note and chattel mortgage of said property, said promissory note to bear interest at the rate of ten per cent per annum. The said second party agrees to secure to the said first party publication of certain legal notices, and in consideration thereof it is hereby agreed that seventy per cent of the amount received by said first party for such publications shall be considered as so much money paid in pursuance of this contract, and applied as a part of the aforesaid $ 700. The said first party further agrees that he will make a reasonable bid for the county printing for Kootenai county, Idaho to be let by the county commissioners thereof in April, 1897, and, in the event he is awarded the contract therefor, that in compliance with this contract by the said second party in the payment of the said $ 700 as aforesaid he will assign the said contract to the said second party, if upon investigation the said contract is found to be assignable, and, in case the said contract is found to be not assignable, then, in that event, he hereby agrees to sublet the contract to said second party at the same price and on the same terms that the said contract may be awarded to him, the said first party. It is further agreed that the said first party shall be held by this contract to the performance of the covenants therein at the option of the said second party at any time between the tenth day of April, 1897, and the tenth day of May, 1897. It is further agreed that in case the said second party does not comply with the terms of this contract in the payment of the sum mentioned herein, that said second party shall be entitled to no compensation for securing said legal notices for publication as hereinbefore stated. It is further agreed that said first party shall assign to said second party all sums due and owing first party on subscription to the 'Silver Blade' on the day of the transfer, together with all sums due or to become due for legal notices, the publication of which shall not at the time of the said transfer be completed except thirty per cent of the amount that may become due for the publication of such of the aforesaid legal notices secured by said second party as shall not at that time be completed. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

(Signed) "JOHN F. YOST.

(Signed) "J, C. BRADY."

Defendant demurred to the complaint on the ground that it did not "state facts sufficient to constitute a cause of action for want of equity." The...