Quirk v. Muller

• Decision Date: 11 June 1894
• Citation: 36 P. 1077,14 Mont. 467
• Parties: QUIRK v. MULLER
• Court: Montana Supreme Court

36 P. 1077

14 Mont. 467

QUIRK v. MULLER

Supreme Court of Montana

June 11, 1894

Appeal from district court, Lewis and Clarke county; William H Hunt, Judge.

Action by John A. Quirk against Anna Muller to recover for services in securing evidence for a lawsuit. Judgment for plaintiff and defendant appeals. Reversed.

This is an appeal from the judgment, upon which the only contention made is that the complaint does not support the judgment. Gillette v. Hibbard, 3 Mont. 412. The action was for compensation for certain personal services rendered by plaintiff to defendant, under an alleged contract. The complaint is somewhat voluminous, but the portions material to this inquiry may be stated therefrom as follows: One Buyck was in possession of certain property of defendant herein Anna Muller, under a deed from said Muller to Buyck, which she claimed was fraudulent. She desired to recover possession of this property. It may be stated in passing that the action which she brought for this purpose was finally decided in this court, under the title of Muller v. Buyck, and reported in 12 Mont. 354, 30 P. 386. The complaint in this case then alleges that she, Anna Muller, "made and entered into an agreement with this plaintiff, whereby she employed this plaintiff to make search and inquiry, and ascertain the names of persons who were familiar with the said property, and acquainted with the defendant and the said Sully Buyck, and with the facts and circumstances connected with the execution of the instrument aforesaid, and of the financial circumstances of the said Sully Buyck, and to procure such other testimony which, when introduced in court in an action duly and regularly brought, would entitle the said defendant to the possession of the said property, and the cancellation of the said instruments, and restore her to all her rights in and to said property; and the said defendant then and there promised and agreed that if this plaintiff would ascertain and procure the names of such witnesses, whose testimony would enable her to recover her rights in and to said property, and the possession thereof, that she, the said defendant, would pay to this plaintiff, for such services, an amount equal to 10 per cent. of the value of the property so recovered, to be paid when the said property would be recovered; and plaintiff agreed to enter upon said employment, and procure the names of witnesses to establish said facts, if such witnesses could be procured. That thereupon this plaintiff, relying upon said agreement commenced an investigation of the facts and circumstances connected with the execution of the instruments aforesaid, and to obtain all information he could with reference to the said Sully Buyck, and to procure the names of persons who were familiar with the facts and circumstances relating to the ownership of the said property, and with the execution of the said instruments, and the financial condition of the said Sully Buck, and the consideration that was paid for said property, and the source from which such consideration was derived, and all other facts necessary to establish the right and title of the said Anna Muller in and to the property aforesaid; and plaintiff avers that he did procure the names of witnesses who were familiar with the facts aforesaid, and did secure sufficient testimony to establish defendant's right, title, and interest and claim in and to said property, and each and every part thereof." The complaint then goes on to set up the commencement of the action of Muller v. Buyck, and the trial thereof, and the judgment in favor of Muller. Speaking of the trial of that case, the complaint alleges: "And the said testimony procured by this plaintiff in his said employment was introduced, and the witnesses whose testimony he procured were produced and testified in said action in behalf of said Anna Muller; and, upon due consideration of said testimony, the court adjudged and decreed," etc. The judgment being for the plaintiff in this action, the defendant appeals.

J. M. Clements, for appellant.

Walsh & Newman, for respondent.

DE WITT, J. (after stating the facts).

We are of opinion that the complaint is not sufficient to sustain the judgment. The learned district judge would have doubtless so held if the point had been made before him. We believe that the contract set out in the complaint is void as against public policy, and as tending to impede the administration of justice. The plaintiff was employed, not only to make search and inquiry for witnesses, and to ascertain the names of persons acquainted with the facts and circumstances, but also, in addition to this, to procure such other testimony which, when introduced in evidence, would entitle the said Anna Muller to recover possession of the property. The searching for witnesses who had disappeared or documents which had been lost, or the performance of legitimate detective work, is not subject to objection. But the plaintiff was, according to his contract, to do more than this. These things he was to do, but they were not considered sufficient. He added to them, and contracted in connection with them, that he would, in effect, procure testimony that would win a lawsuit. It is alleged, further, in effect, that the testimony which he thus procured did win the lawsuit. Indeed, the contract, brought down to a simple statement, is that plaintiff agreed, for a consideration, to procure testimony that would win the lawsuit. He procured the testimony, and it won the suit. We do not hold the contract void because it was an agreement to procure perjury, or because it did procure perjury; but the contract had the tendency and opened the very strong temptation to the procurement of perjury. Mr. Bishop says: "The mere tendency of a contract to promote unlawful acts renders it illegal, as against the policy of the law, without regard to any circumstances indicating the probable commission of such acts." Bish. Cont. § 476. In the case of Wellington v. Kelly, 84 N.Y. 543, the court found that the particular contract there under review was a legitimate and proper one, but, upon the general principle of contracts to furnish evidence for a lawsuit, Judge Andrews, in the opinion, says: "In Stanley v. Jones, 7 Bing. 369, it was held that an agreement made by a third person to communicate to a person claiming to have...