Bush v. Russell

• Decision Date: 06 February 1913
• Citation: 180 Ala. 590,61 So. 373
• Parties: BUSH v. RUSSELL.
• Court: Alabama Supreme Court

61 So. 373

180 Ala. 590

BUSH v. RUSSELL.

Supreme Court of Alabama

February 6, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Assumpsit by Albert P. Bush against Julia F. Russell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The substance of the contract sufficiently appears from the opinion. Plea 5 is as follows: "Defendant says that the only consideration for the promise which is sued upon was a promise on the part of the plaintiff to influence the officials of the United States government in the selection of the property in person by the United States government for post office purposes." The plea was afterwards amended by striking out the words "the only" before the word "consideration," and inserting in lieu thereof the words "a part of the." The demurrers raise the question discussed in the opinion.

Stevens Lyon & Dean, of Mobile, for appellant.

Gregory L. & H.T. Smith, of Mobile, for appellee.

SAYRE J.

Appellant sued appellee upon her written agreement to pay him a fixed sum for services to be rendered in assisting defendant in her efforts to sell to the government of the United States a certain parcel of land in the city of Mobile. Plaintiff agreed "to use all reasonable diligence on his part to assist the said party of the first part (defendant) in the sale of the said property to the United States." He further agreed "to go to Washington, D.C., as many times as he may (might) deem necessary in his efforts to effect the sale by the said party of the first part to the United States." The contract, which is set out in haec verba in the third count of the complaint, contains no further definition of plaintiff's duties. Payment of the agreed sum was conditioned upon the sale being consummated, which condition, it is averred, has been performed. Defendant pleaded the general issue and several special pleas in confession and avoidance. Demurrers to the special pleas were overruled, whereupon plaintiff took a nonsuit, reserving, as the record shows, the right to have the several rulings reviewed on appeal as contemplated and provided by section 3017 of the Code.

It seems convenient in the first place to consider appellee's contention that, if there was error, it was in view of the presence of the general issue, which was formally pleaded, error without injury. This on the authority of Setzer v. Mertz, 156 Ala. 667, 47 So. 1039, and the cases there cited. Appellant's procedure for a review has been controlled by his understanding of the meaning and effect of section 3017 of the Code, which reads as follows "If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling or decision may be reserved for the decision of the Supreme Court by bill of exceptions or by appeal on the record as in other cases." Prior to the amendment of February 2, 1903 (Acts, p. 34), and subsequent to the Revised Code of 1867, only such rulings as were properly shown by a bill of exceptions could be reserved for review in case of a nonsuit, and the necessity contemplated was shown when it was made to appear that the plaintiff became satisfied by reason of the adverse ruling that he could not recover, and therefore took a nonsuit, not voluntarily, but in order to avoid a verdict against him. So it is now. Duncan v. Hargrove, 22 Ala. 150; Engle v. Patterson, 167 Ala. 117, 52 So. 397. No doubt there may be cases in which the ruling reserved for review by nonsuit will appear to be error without injury. But this is not one of them. The plaintiff may have been able to make out the case alleged in his complaint, but wholly unable to meet the alleged matter of avoidance. It was therefore necessary within the meaning of the statute for him to have a correction of the erroneous ruling touching the legal sufficiency of the alleged matter of avoidance. With the exception of Setzer v. Mertz, supra, the cases cited by appellant on this point were cases in which the plaintiff, by refusing to plead over, suffered judgment without adducing proof of his complaint, and without resorting to the statutory method of review by nonsuit; indeed, they were decided during an interval of the statutory history in which there was no provision for a review by nonsuit of rulings on the pleadings. The memorandum decision in Setzer v. Mertz is probably to be accounted for by the fact that the original judgment of nonsuit failed to show that plaintiff refused to plead over in order that he might have a review of the pleadings by nonsuit. For aught appearing in the judgment entry, by which alone rulings on questions of pleading were to be shown, the nonsuit was, so far as affected by such rulings, voluntary. Later on this defect in the judgment was corrected after a fashion, but the facts as to the nonsuit were not stated in any judgment entry. There was a motion for correction, and an order that "the motion is granted." Unless the rulings be thus accounted for, the statute is emasculated, and we decline to follow the case further.

Plea 5, the ruling in support of which is now urged for error, was that a part of the consideration for the promise sued upon was a promise on the part of plaintiff to influence the officials of the United States government in the selection of the property in question for post office purposes. The sufficiency of the plea was sustained on the theory that all contracts of employment to influence officers of government are vicious in tendency and void as opposed to public policy. As against the special count, where the contract is set out, argument for the plea dwells upon the fact that the compensation there shown to have been bargained for was contingent upon the success of plaintiff's efforts to procure a sale to the government. But in the consideration of the plea as an answer to the common counts that fact does not appear. We are not disposed to attach controlling importance to the presence or absence of this fact, for the reason that, while the fact that his compensation is contingent will naturally stimulate the efforts of a broker or other agent and so hold out inducement to the use of improper means, and such contracts ought therefore perhaps to be subjected to the more careful scrutiny, yet the temptation to wrong in such cases is not different in kind from the seduction of self-interest which inheres in all business transactions, and, if the parties in truth contemplate no impropriety and the contract is irreproachable in other respects, our judgment is that it cannot be condemned because there is a stipulation for a contingent compensation. The contract is good or bad without regard to that circumstance. Stanton v. Embry, 93 U.S. 548, 23 L.Ed. 983.

On the face of the contract shown in the special count, there appears no intimation of a resort to improper practices. However, the judgment below was not induced by the consideration that the service stipulated for in the particular case was understood to be vicious or immoral, but by the argument, as we may infer, that the contract by nature belonged to a class which the law, in unswerving pursuit of a settled policy, will not enforce nor tolerate because they tend generally to improper practices, and irrespective of the question whether improper means are actually contemplated or used in their execution. The courts are closed against some contracts because they are inherently bad, as where they amount to a waiver of duties imposed by law, or an invasion of the rights of others, or a disturbance of the public peace, order, or morality. But not all contracts looking to an effect upon the administration of the affairs of government are to be condemned, for individuals have a right to be heard as to them--peculiarly so when their private interests are involved. In respect to interferences with the discharge of the functions of government this court in ...