Ferrell v. Elkins

• Decision Date: 21 May 1923
• Docket Number: 395
• Citation: 251 S.W. 380,159 Ark. 31
• Parties: FERRELL v. ELKINS
• Court: Arkansas Supreme Court

251 S.W. 380

159 Ark. 31

FERRELL v. ELKINS

No. 395

Supreme Court of Arkansas

May 21, 1923

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

STATEMENT OF FACTS.

Clyde A. Ferrell sued M. W. Elkins and W. I. Davis to recover $ 10,000 alleged to be due him for assisting them in procuring a contract between them and the Western Lawrence Road Improvement District No. 1 to construct an improved road.

The court sustained a demurrer to the complaint on the ground that the contract sued on was against public policy, and void. The plaintiff amended his complaint, and the court again sustained a demurrer to it on the same ground. The plaintiff then filed an amended complaint. It alleges that the plaintiff, Ferrell, is a citizen of Pulaski County, Ark that the defendant, Elkins, is a citizen and resident of Pulaski County, and that the defendant, Davis, is a resident of Lawrence County, Ark. That in the year 1919 the plaintiff was associated with said defendants in a construction company for the purpose of road building, and, as a partner with them, was interested in their business to the extent of one-third of any contracts they might obtain; that he was an engineer, and familiar with the class and kind of work which they expected to do; that, in securing contracts for the construction of roads, it is necessary to do a great amount of preliminary work, such as making surveys and cross-sectioning the road and estimating and compiling data as to the costs, profits, etc. That during the year 1919 said partnership became interested in the contemplated improvement of Western Lawrence Road Improvement District No. 1, and that the plaintiff did a great amount of preliminary work surveying, estimating, etc., all of which he furnished the partnership, and which was used by it in bidding upon and in securing the contract to construct an improved road in said improvement district. That before a bid was made for said work it was desirable that the partnership should be dissolved, and this was done, and that, upon the dissolution of the partnership, Davis agreed to pay Elkins $ 5,000 for his interest therein and Ferrell $ 10,000 for his interest. That Davis was not able to make said payments in cash, and made a contract in writing whereby he agreed to pay Elkins for his use and benefit and for the use and benefit of Ferrell the sum of $ 15,000, and that the same should be paid to him by the commissioners of said district. A copy of said contract was made a part of the complaint, and that no amount whatever had been paid the plaintiff under said contract. Wherefore the plaintiff prayed for judgment against both defendants in the sum of $ 10,000.

Exhibit "A" referred to in the complaint is as follows:

"September 2, 1919.

"Mr Clyde A. Ferrell, Little Rock, Ark.

"Subject Western Road Improvement District, Lawrence County, Arkansas.

"Dear sir: I hereby assign to you a two-thirds interest in and (to) the agreement given me this day by W. I. Davis, contractor, who agreed to pay me a fee of $ 15,000 for my assistance in aiding to secure the above contract.

"As the first payments are made to me, I agree to pay to you one-half of each payment until I have received the sum of $ 10,000, then you are to receive all of the remainder of $ 5,000.

"Very truly yours,

(Signed) "M. W. ELKINS."

The court sustained a demurrer to the amended complaint. Thereupon the plaintiff refused to plead further and elected to stand upon his complaint, and his complaint was dismissed by the court.

The plaintiff has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

G. E. Garner, for appellant.

Mehaffy, Donham & Mehaffy, for appellees.

The contract sued on is void as against public policy. 40 Ark. 251; 133 Ark. 113; 147 Ark. 252; 134 Ark. 328; 124 Ark. 313; 122 Ark. 562.

Murphy, McHaney & Dunaway, for appellee Davis.

The court properly sustained the demurrer to the complaint, the contract sued on being void as against public policy. 124 Ark. 313; 160 N.W. 927; 94 S.E. (W. Va.) 388; 177 P. 903; 219 Ill.App. 432; 226 S.W. 221; 129 N.E. 669; 152 Ark. 139; 61 So. 373; 95 P. 936; 117 N.W. 746; 139 N.W. 567; 182 S.W. 220; 155 P. 241; 118 S.W. 848; 62 So. 542.

OPINION

HART, J. (after stating the facts).

As above stated, the ground upon which the demurrer to the amended complaint was sustained by the court is that the contract sued on is contrary to public policy, and therefore void. This court has held that a contract to procure the passage of an act of the Legislature by lobby services, or by using personal influence with the members, is void as against public policy. Buchanan v. Farmer, 122 Ark. 562, 184 S.W. 33, and Miller County H. & B. Dist. v. Cook, 134 Ark. 328, 204 S.W. 420.

The Supreme Court of the United States has said that there is no real difference, in principle, between agreements to procure favors from legislative bodies and agreements to procure favors in the shape of contracts from the heads of departments of the United States Government. The court further said that the introduction of improper elements to control the action of both is the direct and inevitable result of all such arrangements. Tool Co. v. Norris, 69 U.S. 45, 2 Wall. (U. S.) 45, 17 L.Ed. 868. See also Cole v. Brown-Hurley Hardware Co. (Iowa), 18 L.R.A. 1161, and Kansas City Paper House v. Foley Railway Printing Co. (Kan.), 39 L.R.A. 747.

In the case from Iowa, just cited, it was said that no court should hesitate to declare void any agreement or contract to corrupt or improperly influence the official conduct of any public...