Gammons v. Johnson
| Decision Date | 26 April 1899 |
| Docket Number | 11,362 - (47) |
| Citation | 78 N.W. 1035,76 Minn. 76 |
| Parties | LEONARD W. GAMMONS v. GUSTAF JOHNSON |
| Court | Minnesota Supreme Court |
Action in the district court for Grant county to recover $90 for services performed and money expended for defendant. The case was tried before C. L. Brown, J., and a jury, which rendered a verdict in favor of plaintiff for $40; and from an order denying a motion for a new trial, defendant appealed. Reversed.
Attorney at Law -- Offer to Prove Speculative Contract with Attorney's Principal -- Error to Refuse Offer -- Champerty -- Public Policy.
Upon the trial the defendant offered to prove that the plaintiff an attorney at law, and one H. entered into an agreement or arrangement whereby H. was to canvass certain counties in the state to hunt up claims of landowners against railroad companies for failing to fence their roads across the lands of such parties, and to instigate suits on such claims against the companies; that, for the purpose of working up and instigating such litigation, plaintiff furnished H. blank contracts which he was to procure the parties to execute, by which they severally authorized H. to employ an attorney to bring a suit against the railroad company for damages; H. to prosecute the suit at his own expense, indemnify the party against the expenses of litigation, accept a share of what he recovered for his compensation, and not to charge anything for his services unless he recovered; the party not to settle with the railroad company without H.'s consent. H canvassed a number of counties, and procured over 70 persons, including defendant, to sign these contracts, upon which, in pursuance of the arrangement between plaintiff and H., the former instituted suits against the railroad companies in the names of the landowners, including the defendant. Both plaintiff and H. were strangers to these parties and to the claims which were the subjects of these contracts, and had no interest in them or any object in intermeddling with the matters, except the speculative one in the pecuniary profit which they might derive from the litigation which they instigated. In an action by plaintiff against the defendant for services rendered and disbursements made by himself and H. in prosecuting the suit in the name of plaintiff, in pursuance of this contract, held, that it was error to exclude the evidence; that, upon the facts offered to be proved, plaintiff cannot recover even the reasonable value and amount of these services and disbursements; that this systematic scheme of working up and instigating vexatious litigation in which he and H. were not interested, and to which and the parties they were entire strangers, was champertous and barratrous, and against public policy.
Attorney at Law -- Quantum Meruit -- Gammons v. Johnson Distinguished.
The rule that an attorney may, notwithstanding a champertous contract as to his compensation, recover the reasonable value of his services lawfully performed, in litigation legitimately instituted, is not applicable. The vice was not merely in the contract for compensation, but in the unlawful and vexatious scheme by which the litigation itself was worked up and instigated.. Distinguishing Gammons v. Johnson, 69 Minn. 488.
J. W. Mason, for appellant.
F. W. Booth and L. W. Gammons, for respondent.
The contract being void, suit may be maintained on a quantum meruit. 3 Am. & Eng. Enc. 86; Gammons v. Johnson, 69 Minn. 488; King v. Brown, 2 Hill, 485. See also Burlingame v. Burlingame, 7 Cow. 92; Clark v. Davidson, 53 Wis. 317; Lockwood v. Barnes, 3 Hill, 128; Stearns v. Felker, 28 Wis. 594; McPhail v. Board, 119 N.C. 330. The contract is not divisible. Clark v. Davidson, supra. If part of a contract is void under the statute of frauds, the whole is void. Van Alstine v. Wimple, 5 Cow. 162; Lexington v. Clarke, 2 Vent. 223; Baldwin v. Palmer, 10 N.Y. 232. The case stands as if there had been no contract. Acceptance of the fruits of litigation is ratification. Bassford v. Swift, 17 Misc. 149. See U.S. v. School, 56 Neb. 645; Moye v. Cogdell, 69 N.C. 93; Dresser v. Wood, 15 Kan. 344.
This is the third case, growing out of the same contract between the defendant and one Huber, which has been before this court. Huber v. Johnson, 68 Minn. 74, 70 N.W. 806; Gammons v. Johnson, 69 Minn. 488, 72 N.W. 563.
The provisions of the contract are quite fully stated in the opinion in Huber v. Johnson, supra. That action was brought by Huber himself to recover on the express contract, and this court held that the contract was against public policy and void, and that no recovery could be had upon it.
The second action (69 Minn. 488, 72 N.W. 563) was brought by the present plaintiff (who is the attorney employed by Huber under the contract already referred to) to recover the reasonable value of professional services rendered for defendant in his suit for damages against the Great Northern Railway Company. The complaint in that case alleged that the defendant, after a fruitless effort to settle and adjust his claim for damages against the railroad company, himself caused suit to be brought in his own name against the railroad company to enforce his claim, and employed the plaintiff to institute and prosecute a suit; that thereafter the plaintiff and defendant entered into a written agreement as to plaintiff's compensation for conducting the suit. This alleged agreement was set out in the complaint in full, and was identical in its terms with the contract with Huber declared on in the first action. It will be observed that there were no allegations in that complaint tending to show anything champertous or against public policy in the institution of the action against the railway company, or in the original employment of the plaintiff by the defendant. The only vice was in the subsequent agreement between the parties as to plaintiff's compensation. When the case came up on appeal from an order sustaining a demurrer to the complaint, it was held that, upon the facts alleged, the plaintiff might recover a reasonable compensation for his services, although the written contract between him and the defendant was void, the court saying, at page 489:
Upon the particular facts alleged, this decision is undoubtedly in accordance with the great weight of authority. It was presumably upon it that the learned trial judge chiefly relied in the present case. But, as will be hereafter shown, it does not go to the length the judge probably supposed, and does not control this case.
The complaint in this case is silent as to any special contract between the defendant and either the plaintiff or Huber. For his first and second causes of action, the plaintiff alleges generally the performance of professional services, and the expenditure of money by the plaintiff for the defendant at his instance and request. For his third and fourth causes of action, he alleges generally the performance of certain labor and services, and the expenditure of certain moneys by Huber for the defendant at his special instance and request, which claims had been assigned by Huber to the plaintiff.
In his answer, the defendant, among other things, denied that he ever employed or requested the plaintiff to perform any services for him, or that plaintiff ever did perform any. The answer further alleged, and upon the trial the defendant offered to prove, that, in the spring of 1896, plaintiff and Huber (who was a layman) entered into an agreement or arrangement whereby Huber and one Mossberg, as the agent of plaintiff and Huber, were to go through certain counties in the northern and western parts of the state to seek out claims, and instigate suits against the Great Northern Railway Company for damages resulting to different parties from the failure of the railroad company to fence its track across the land of such parties, and, when they discovered any such claim, to procure the party having the claim to bring suit against the railroad company; that, for the purpose of working up and procuring the institution of such suits, plaintiff furnished Huber with blank contracts for the parties to execute, which were identical in terms with the contract already referred to between defendant and Huber, of which it was one; that, in pursuance of this agreement, Huber and Mossberg canvassed some nine counties to seek out and bring to light such claims, and induced 71 separate and distinct persons ( this defendant) to execute such contracts, under which 71 suits were instituted against the railroad company by Huber and plaintiff, but in...
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