Reilly v. Beekman

• Decision Date: 12 March 1928
• Docket Number: No. 201.,201.
• Citation: 24 F.2d 791
• Parties: REILLY v. BEEKMAN.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 791 (1928)

REILLY v. BEEKMAN.

No. 201.

Circuit Court of Appeals, Second Circuit.

March 12, 1928.

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Olvany, Eisner & Donnelly, of New York City (James F. Donnelly and Samuel Michelman, both of New York City, of counsel), for plaintiff in error.

Parker, Marshall & Auchincloss, of New York City (H. Snowden Marshall and Clarence

L. Sager, both of New York City, of counsel), for defendant in error.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

It is true that the so-called transcript of record was filed within the extended term, but it was not a bill of exceptions. The certificate of the clerk, who could have no knowledge of the testimony taken at the trial, was confessedly based only on the stipulations of the parties, and not on the judge's minutes as settled and allowed by him, which alone could be the record of the trial.

The minutes are no part of the record, until made so by the judge. Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 25 S. Ct. 28, 49 L. Ed. 219; Young v. Martin, 8 Wall. 354, 19 L. Ed. 418; Duluth St. Ry. Co. v. Speaks (C. C. A.) 204 F. 573; Chicago Great Western R. Co. v. Le Valley (C. C. A.) 233 F. 384; Fraina v. United States (C. C. A.) 255 F. 28; Buessel v. United States (C. C. A.) 258 F. 811. As Chief Justice Marshall said in Lessee of Fisher v. Cockerell, 5 Pet. at page 254, 8 L. Ed. 114: "The unauthorized certificate of the clerk that any document was read, or any evidence given, to the jury, cannot make that document or that evidence a part of the record, so as to bring it to the cognizance of this court."

A bill of exceptions was necessary to make the so-called transcript a part of the record, and without one the record is limited to "the pleadings, the process, the verdict, and the judgment. * * *" Clune v. United States, 159 U. S. 590, 16 S. Ct. 125, 40 L. Ed. 269. In view of the foregoing, the only questions really open for consideration are whether the judgment was justified in view of the pleadings.

It cannot be disputed that, if Reilly was in a fiduciary relation to Mrs. Trenkman when he recommended Beekman to her as her attorney, he could not agree to profit from the business arising out of the introduction without her knowledge and consent. This is because Mrs. Trenkman was entitled to his disinterested advice as to the attorney to be recommended to her. That advice was not likely to be disinterested, if affected by the consideration of whether or not he could make a profit out of the recommendation of a particular person. Moreover, she was entitled to have him recommend an attorney, the amount of whose fees would depend on the services he had to perform, and would not be affected by what he had to pay out to the plaintiff for an introduction to the client. Auerbach v. Curie, 119 App. Div. 176, 104 N. Y. S. 233; Alpers v. Hunt, 86 Cal. 78, 24 P. 846, 9 L. R. A. 483, 21 Am. St. Rep. 17; McNair v. Parr, 177 Mich. 327, 143 N. W. 42. If she knew Reilly's interest, and what he was to receive, and consented to the arrangement, the case would be different. She might be willing to sanction it, because it would save her from paying Reilly for his advice, or for other reasons. If, as is contended, Reilly was not acting in an ordinary sense as an agent for Mrs. Trenkman in respect to her business and financial affairs, and simply as a friend recommended a lawyer, when requested so to do, we think he stands in no better position. To be sure, in that case he would be only a volunteer; but if he offered merely as a friend to recommend an attorney, with no knowledge on her part that he was to derive any benefit from the recommendation, she was deprived of the disinterested advice which he assumed to give when he was under the pay of Beekman in making the recommendation.

This principle was clearly recognized in Bollman v. Loomis, 41 Conn. 581, Holcomb v. Weaver, 136 Mass. 265, Wyburd v. Stanton, 4 Esp. 179, and Williston on Contracts, vol. 3, p. 3035. The fact that he was a volunteer could make no difference. The objectionable feature was that he assumed to act as an apparently disinterested person, when under pay from Beekman for doing the very thing which he undertook to do for Mrs. Trenkman. In such circumstances the law regards the contract on which recovery is sought as unenforceable, because against public policy. The guilt or innocence of Beekman does not affect this result. If he knew that Reilly was not a lawyer, the agreement was bad under the provisions of section 274 of the New York Penal Law (Consol. Laws, c. 40). Defendant denied that he had such knowledge, and said, when he first acquired it, he repudiated the arrangement. If he knew that the plaintiff was acting in a fiduciary relation for Mrs. Trenkman and agreed to pay him for a recommendation, he was aiding a breach of trust; but he denied that he did more than to pay Reilly for work done.

But it is said that Mrs. Trenkman knew that Reilly had an interest in Beekman's fees and consented that he be paid by the latter. It is true that there was testimony in the case that Mrs. Trenkman was told by Beekman that "he was taking care of" Reilly, and that he had paid Reilly $50,000 for the introduction and various other things. This was...