Pape v. Wright

• Decision Date: 11 January 1889
• Docket Number: 13,219
• Citation: 19 N.E. 459,116 Ind. 502
• Parties: Pape v. Wright
• Court: Indiana Supreme Court

19 N.E. 459

116 Ind. 502

Pape v. Wright

No. 13,219

Supreme Court of Indiana

January 11, 1889

From the Allen Superior Court.

Judgment reversed, with instructions to sustain the motion for a new trial.

L. M Ninde, for appellant.

A. A Chapin, W. S. O'Rourke, -- Spencer and -- Jenkinson, for appellee.

OPINION

Elliott, C. J.

The complaint upon which this cause was tried alleges that the appellant employed the appellee to procure purchasers for patented rights of which he was the owner, and promised to pay the appellee a commission as compensation for his services; that the appellee did procure purchasers, and that the appellant sold the rights to the purchasers procured by the appellee.

The answer of the appellant is in three paragraphs; the first is a general denial, and the second a plea of payment.

The third contains these facts: At the time the contract was entered into, the purchasers procured, and the rights sold, neither the defendant nor the plaintiff, nor any other person, had filed with the clerk of the court of Allen county copies of letters patent, nor had they, or any one, made an affidavit that the letters patent were genuine.To this answer a demurrer was sustained.

The validity of our statute regulating the sale of patented rights has been repeatedly affirmed by this court.It is with us no longer an open question.Fry v. State,63 Ind. 552;Toledo Agricultural Works v. Work,70 Ind. 253;Brechbill v. Randall,102 Ind. 528, 1 N.E. 362;New v. Walker,108 Ind. 365, 9 N.E. 386;Hankey v. Downey, ante, p. 118.

We collected and examined the authorities in New v. Walker, supra, and we shall not again discuss them further than to refer to a very recent case decided by the Court of Appeals of New York, where the doctrine of New v. Walker, supra, was approved.Herdic v. Roessler,109 N.Y. 127, 16 N.E. 198.It was said in the course of the opinion in that case: "But the law of Congress and the State law are not in conflict.The object of one is to secure to the inventor an exclusive right to use or sell his invention, and the object of the other is to protect against fraud in sales."

If the question of the sufficiency of the answers depended solely upon the validity of our statute, we should have no hesitation in adjudging the answer good; but affirming the validity of the statute does not lead to an affirmance of the sufficiency of the answer.

The case is a peculiar one.The plaintiff was employed to procure purchasers for patented rights.He was not employed to sell, but to furnish purchasers.He was acting as a broker, and as such was entitled to his commission when he furnished a purchaser, whether a sale was consummated or not.Brokers who undertake to find purchasers earn their commissions when they bring to their principal a person willing and ready to buy.Love v. Miller,53 Ind. 294;Vinton v. Baldwin,88 Ind. 104, and cases cited;Fischer v. Bell,91 Ind. 243;McClave v. Paine,49 N.Y. 561(10 Am. R. 431).

The question is, not whether it was illegal to sell, or offer to sell, patented rights, but whether it was illegal for the broker to attempt to find a purchaser, for, as the pleadings present the facts, the broker was not authorized to make a sale, nor was he requested to sell.All that he was engaged to do was to procure some one to buy.He was not, therefore, an agent authorized to sell, but was what the authorities denominate a middleman.Alexander v. North -Western Christian University, 57 Ind. 466;Vinton v. Baldwin, supra;Redfield v. Tegg,38 N.Y. 212;Rowe v. Stevens,53 N.Y. 621;Rupp v. Sampson,16 Gray, 398;Barry v. Schmidt,27 Alb. L. J. 297.

The office of a middleman is to bring the parties together, leaving to them the consummation of the sale, and he does not sell, or offer to sell, but simply sets in train preliminary negotiations.If a middleman is entitled to compensation when he procures a purchaser, then he can enforce his contract, notwithstanding the fact that his employer violates the law, for its enforcement does not require that he shall bring to his assistance the illegal contract of selling, or offering to sell, patented articles.The rule upon the general subject is that a recovery may be adjudged whenever it can be reached without the aid of an illegal contract.Louisville, etc., R. W. Co. v. Buck, post, p. 566;Sondheim v. Gilbert,117 Ind. 71, 18 N.E. 687.

In the case of Planters' Bank v. Union Bank,83 U.S. 483, 16 Wall. 483, 21 L.Ed. 473, the rule was declared to be substantially that stated by us, the court saying: "The plaintiffs do not require the aid of any illegal transaction to establish their case.It is enough that the defendants have in hand a thing of value that belongs to them."Other decisions approve this doctrine.Brooks v. Martin,69 U.S. 70, 2 Wall. 70, 17 L.Ed. 732;Cook v. Sherman,20 F. 570;Burke v. Flood,6 Saw. 220;Lehman v. Strassberger, 2 Woods 554, 15 F. Cas. 254.

Closely analyzing the pleadings, and recapitulating somewhat, we shall find these elements present: That the undertaking was to find a purchaser; that the appellee had no knowledge of any intention on the part of his employer to violate the law; that the employer has had the benefit of the appellee's services, and that a recovery may be enforced without validating the illegal acts of the appellant.These elements are important, for they discriminate the case from that of an agent joining with his principal in a known illegal act; they mark it as a case where the principal is seeking to use his own wrong to escape payment for services rendered at his request, and they prove it to be a contract not blended with the illegal conduct and purpose of the wrongdoer.The question is not what are the rights of the public as against the appellee, but the question is as to the rights of a principal upon whom chiefly and primarily rested the duty of performing the acts required by the law as against a middleman who has done what the principal employed him to do.Proceeding upon the general principles we have stated, and guided by the authorities we have cited, our course, if we kept in the straight path marked out by them, would lead us, even without decisions more directly in point, to the conclusion that the answer is bad.But our search for direct decisions has not been unrewarded, for we have found cases strongly in point.In the case of Crane v. Whittemore,4 Mo.App. 510, it was held that "A broker may recover his commissions for services rendered in finding a purchaser for certain goods, even though the contract of sale between the buyer and seller, made after the broker's services were performed, was immoral and against public policy as a wager contract; nor is the question affected by the broker's knowledge of the character of the contract, he not being a party thereto."The case which we cite is a much stronger case than the one before us, especially in the particular that the broker had knowledge of the illegal character of the transaction.Here, we can not assume knowledge, for the presumption is in favor of obedience to law and in favor of fair dealing.Curtis v. Gokey,68 N.Y. 300.In another particular the case cited is stronger than the present, for there, both parties to the illegal contract were wrongdoers, while here, the purchaser procured by the broker was guilty of no wrong, although the seller was.

In the case of Ormes v. Dauchy, 13 Jones &S. 85, it was held that a broker who brought parties together might recover his commissions, although the contract entered into between the parties brought together by him was for advertising a lottery, and such advertisements were forbidden by statute.The court there said of the contract of the brokers: "Their engagement was ended when they introduced the parties to each other, and the law allows them compensation for that particular service.The contract of the plaintiff was, in itself, therefore, lawful and free from vice, and I do not see how it can be avoided on the ground that it may have possibly facilitated an illegal transaction.It is impossible to foresee where the doctrine would carry us should it be held that the broker's contract is void because it may have some remote connection with other unlawful contracts.I am not aware of any principle which could justify this."

It is possibly true that the court pushed beyond its just limits in applying it to the facts of the case before it, the general rule it stated.Ormes v. Dauchy,82 N.Y. 443(37 Am. Rep. 583).But granting this, still the rule remains in its integrity and must apply where, as here, the duties of the broker were at an end before any illegal act was done with which he was directly or remotely connected; for here, no act of his was illegal, nor did it, by any wrong of his, facilitate in legal contemplation the performance of an illegal act by his employer.In the case cited, the law positively prohibited the act which the broker brought the parties together to perform, while here, the act was not prohibited, but might lawfully be performed by one who had complied with the statute.Here there was no general prohibition, but simply a regulation of the mode of procedure by venders of patented rights.If the sale of patented rights had been absolutely prohibited (supposing such a thing legally possible), there would be plausibility in the theory that a broker could not do any act toward bringing about a sale, for then the case would be within the rule laid down in such cases as Biggs v. Lawrence, 3 TermR. 454;Clugas v. Penaluna, 4 TermR. 466.But, as the vending of such rights is not unlawful where the statute is complied with, the appellee...