Herrick v. Barzee

• Decision Date: 25 May 1920
• Citation: 190 P. 141,96 Or. 357
• Parties: HERRICK v. BARZEE.
• Court: Oregon Supreme Court

190 P. 141

96 Or. 357

HERRICK v. BARZEE.

Supreme Court of Oregon

May 25, 1920

In Banc.

Appeal from Circuit Court, Multnomah County, W. N. Gatens, Judge.

Action by Samuel Herrick against Charles W. Barzee. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an action to recover $380 for services of plaintiff, as an attorney for the defendant, in prosecuting a claim of the defendant against the United States for $1,900 before Congress and its committees, and securing an act of Congress reimbursing defendant in such sum for the loss of land in the "overlap" in Sherman county, Or.

Plaintiff alleges that he entered into a contract with the defendant in 1907, or 1908, to secure an appropriation to reimburse the defendant for the loss of his land, and that he was to receive 20 per cent. of the amount collected. The defendant alleges that he entered into the contract with the plaintiff in 1901, or 1902, and that the money was to be secured by 1907, or the contract then ceased.

The cause was tried before the court and a jury, and, at the close of the plaintiff's case in chief, the defendant moved for a judgment of involuntary nonsuit upon the grounds that the contract and the manner of its performance were contrary to public policy, and also for the reason that plaintiff was to receive a contingent commission. The nonsuit was granted, and plaintiff appeals.

The original contract was not introduced in evidence. A form of contract, which plaintiff states was in substance the same as the one executed, shows that--

The defendant employed the plaintiff "to prosecute before the Interior Department, the Congress of the United States and if necessary, the United States Court of Claims, his claim against the government for damages to him by reason of the opening to settlement of certain lands within the limits of the Dalles Military Road Grant, in the state of Oregon including damages by reason of the loss of the use of the land and of the improvements for a number of years. In consideration for the said second party's professional services on this claim, the first party agrees to pay said second party the sum of 20 per cent. of the amount recovered from the government."

Bennett J., dissenting.

J. B. Ofner, of Portland (Charles J. Schnabel, of Portland, on the brief), for appellant.

A. M Crawford, of Portland (C. L. Barzee, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

The defendant contends that the contract in question is a lobbying contract and therefore void. The testimony tended to show the following facts: On May 9, 1896, defendant made a timber and stone entry at The Dalles, Or., land office on the S. 1/2 S.W. 1/4 section 21, township 1 N., range 17 E., W. M., in Sherman county, Or. The land office records disclosed that the land was subject to entry. The defendant took possession of the tract and made improvements thereon reasonably worth $1,900. Subsequently it was discovered that said land, having been granted to The Dalles Military Road, was not subject to such entry, and on June 11, 1901, Barzee's entry was canceled, as result of which the latter lost the value of his improvements and was thereby damaged in the sum of $1,900.

It is admitted that the defendant had a just claim against the United States for $1,900; that the plaintiff, Herrick, was employed to prosecute the claim before the proper tribunals for a compensation; that the claim was allowed by Congress on August 11, 1916, and defendant received payment of his claim. There is a conflict in the evidence as to the date of the execution of the contract and also as to the time of its termination and several other matters. In referring to the facts, it is not the intention to express any opinion in regard thereto, but only to mention those which the testimony tended in a measure to prove.

Plaintiff's evidence indicated that he had been an attorney in Washington, D. C., since 1901; that he continued to serve defendant in the matter from the time the contract of employment was made, about 1909, until after the claim was paid in 1916; that he obtained data in regard to the claim of defendant and 67 other similar claims and prepared two or three different bills which were introduced and passed the United States Senate but failed to pass the House of Representatives; that he worked in the preparation of memoranda used before a committee, and appeared as attorney for claimant before a committee and made argument in favor of the claims before the Interior Department and the General Land Office, to which the bill was referred, and was recognized as attorney for Barzee; that in August, 1916, the bill allowing the claims was passed by both branches of Congress, and defendant received the amount of his claim, $1,900. As above stated, we do not pass on the sufficiency of this testimony.

The rule of law appears to be that any person whose interests may be in any way affected by any public or private act of a legislative body has an undoubted right to present and urge his claims by arguments, either in person or by counsel professing to act for him, before legislative committees. A contract for services to be rendered by an attorney before the Legislature or the Congress of the United States, in securing the passage of a law providing for the payment of a just claim, is not unlawful if it does not contemplate the use of improper means and if the services to be rendered are such as appeal to the reason of those whom it is sought to persuade. Drafting the petition to set forth the claim, collecting facts, preparing and submitting arguments either orally or in writing to a committee or other proper authority, and other services of like character, are within the category of professional services. They rest on the same principle of ethics as professional services rendered in a court of justice and are no more exceptionable. Services of such nature are separated by a broad line or demarkation from personal solicitation and similar means and appliances. 6 R. C. L. p. 734, § 139; 13 C.J. p. 432,§ 368; 15 Am. & Eng. Ency. Law (2d Ed.) 970; Hyland v. Oregon Hassam Paving Co., 74 Or. 1-11, 144 P. 1160, L. R. A. 1915C, 823, Ann. Cas. 1916E, 941; Stanton v. Embrey, 93 U.S. 549, 23 L.Ed. 983; Nutt v. Knut, 200 U.S. 12, 26 S.Ct. 216, 50 L.Ed. 348.

A valid distinction is made between lobbying services in procuring the passage of legislation and strictly legitimate professional services of an attorney directed to that end, it being held that a contract for contingent compensation for services of the latter kind is legal and enforceable. Stroemer v. Van Orsdel, 74 Neb. 132, 103 N.W. 1053, 107 N.W. 125, sebrough v. Conover,

140 N.Y. 382, 35 N.E. 633; Davis v. Commonwealth, 164 Mass. 241, 41 N.E. 292, 30 L. R. A. 743; McBratney v. Chandler, 22 Kan. 692, 31 Am. Rep. 213.

If Barzee had a just claim against the United States, he had a right to employ an attorney to render proper professional services. The attorney may receive a compensation consisting of a contingent fee, even where the services are to be performed before Congress. Such a case comes within the well-recognized exceptions to the general rule. Wright v. Tebbitts, 91 U.S. 252, 23 L.Ed. 320; Stanton v. Embrey, supra; Taylor v. Bemiss, 110 U.S. 42, 3 S.Ct. 441, 28 L.Ed. 64; Brown v. Brown, 34 Barb. (N. Y.) 533; Nutt v. Knut, supra; McGowan v. Parish, 237 U.S. 285, 35 S.Ct. 543, 59 L.Ed. 955.

It is stated in 9 Cyc. 483:

"As the habits, opinions, and wants of a people vary with the times so public policy may change with them. * * * It is clearly to the interest of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts, and agreements therefore are not to be held void as being contrary to public policy, unless they are clearly contrary to what the Legislature or judicial decision has declared to be the public policy, or they manifestly tend to injure the public in some way."

The contract in question is not void upon its face. There was some competent testimony that it was a valid, lawful, and enforceable contract. It is identical in all its features with the contract before the Supreme Court of the United States, in the case of Nutt v. Knut, supra, in which a commission amounting to about $20,000 was recovered. As federal legislation is concerned in the present case, we think the cases above referred to before the United States Supreme Court should be taken as our guide.

The act of Congress (39 Stat. 1354) appropriating $94,648.13 to pay the defendant and other claimants named in the act has attached a proviso as follows:

"Provided, that no agent, attorney, firm of attorneys, or any persons engaged heretofore or hereafter in preparing, presenting, or prosecuting this claim shall, directly or indirectly, receive or retain for such service in preparing, presenting, or prosecuting such claim, or for any act whatsoever in connection therewith an amount greater than five per centum of the amount allowed under this bill to the person for whom he has acted as agent or attorney."

In Stanton v. Embrey, supra, where an attorney's fee for the prosecution of a claim against the United States before the officials of the Treasury Department, the services were rendered upon a contract for a contingent remuneration. The instruction of the trial court to the jury which was approved upon appeal to the Supreme Court of the United States was in part as follows:

"Where an attorney in the exercise of his ordinary labor and calling, and with the instrumentalities of his professional learning and industry, undertakes to work out a desired result for his client, not through personal influence, but through the

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