William Deering & Co. v. Cunningham

• Decision Date: 08 June 1902
• Docket Number: 12,321
• Citation: 63 Kan. 174,65 P. 263
• Court: Kansas Supreme Court
• Parties: WILLIAM DEERING & CO. v. J. C. CUNNINGHAM et al

65 P. 263

63 Kan. 174

WILLIAM DEERING & CO. v. J. C. CUNNINGHAM et al

No. 12,321

Supreme Court of Kansas

June 8, 1902

Decided January, 1901.

Error from Montgomery district court; A. H. SKIDMORE, judge. Opinion filed June 8, 1901. Division one. Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Public Policy Contravened. An agreement that, for a pecuniary consideration, a person will withdraw opposition to the granting of a pardon, and will, by solicitation and the exercise of personal influence, endeavor to induce the pardoning authority to grant a pardon to one who has been convicted of a crime, contravenes public policy and is void.

2. PRACTICE--Impeaching Testimony. A party is not concluded by the statements of any witness, but has the right to introduce other competent testimony to show the real facts, although such testimony may incidentally contradict or tend to impeach the testimony of a previous witness.

Albert L. Wilson, for plaintiffs in error.

A. B Clark, for defendants in error.

JOHNSTON, J. CUNNINGHAM, GREENE, ELLIS, JJ., concurring

OPINION

JOHNSTON, J.:

This was an action to recover upon a promissory note for $ 100, bearing interest at the rate of ten per cent. per annum from date, given by J. C. and Mary E. Cunningham to Maud L. Sherrill. It is one of a series of notes given in pursuance of an agreement, of which the following is a copy:

"THIS AGREEMENT, Made and entered into by and between J. C. Cunningham, and E. Sherrill and Maud L. Sherrill, witnesseth:

"That the said E. Sherrill is to dismiss, at his cost, the suit now pending in the state of Illinois entitled E. Sherrill against George C. Cunningham, and brought for the recovery of damages, and the said Maud L. Sherrill is also to dismiss at her cost the suit now pending in Illinois entitled Maud L. Sherrill against George C. Cunningham, and the said J. C. Cunningham is to make, execute and deliver unto said Maud L. Sherrill his three promissory notes, each for the sum of $ 100 and interest from the date of this agreement at the rate of ten per cent. per annum, one note to mature on the 1st day of October, 1892, one on the 1st day of October, 1893, and the other one on the 1st day of October, 1894, said notes to be secured satisfactorily to said E. Sherrill, and to be placed in the hands of O. F. Carson, to be held by him until the conditions of this agreement on the part of said Maud L. Sherrill as aforesaid are performed. The parties hereto are to be friends hereafter, and to quit talking about each other, and all unite in an effort to secure a pardon for said George C. Cunningham, now confined in the penitentiary. All remonstrances and letters against the said pardon are to be withdrawn, and the said E. Sherrill agrees to visit the judge who sentenced and the jury who convicted said George C. Cunningham and try to have them sign a petition for said pardon.

"In witness whereof, the parties have hereunto set their hands, this 4th day of June, 1892.

J. C. CUNNINGHAM.

E. SHERRILL.

MAUD L. SHERRILL."

The note in controversy was delivered to Maud L. Sherrill, who transferred it to William Deering & Co. before maturity; but it is contended that the contract, in pursuance of which the note was given, contravenes public policy, and that it and the accompanying notes are therefore void; that William Deering & Co. had notice of the illegality in the consideration of the note before purchasing the same, and therefore took it subject to that defense. The principal questions presented for determination were whether there was illegality in the consideration of the note, and whether William Deering & Co., who acquired it before maturity, were innocent purchasers. Both questions were decided in favor of the defendants in error.

George C. Cunningham, who had been convicted of a crime and was then in the penitentiary, was a son of J. C. Cunningham, and it appears that the Sherrills, especially Maud L. Sherrill, had been active in the prosecution and in securing the conviction. An effort had been made to obtain a pardon for George C. Cunningham, and it appears that the Sherrills had remonstrated and protested against the granting of the same. In consideration of the notes given, the Sherrills agreed to withdraw all remonstrance and letters protesting against the pardon, to unite with the Cunninghams in an endeavor to obtain the pardon, and to visit the judge and the jurors before whom the conviction was had and endeavor to get them to sign a petition to the governor for a pardon.

The court below correctly advised the jury that the agreement was contrary to public policy, and that, as between the original parties or those who had notice of the illegality, the note was without consideration. There is necessarily nothing immoral or wrong in an application for a pardon. A person may have been wrongfully convicted. Subsequent developments may show that another than he committed the offense, or that there were mitigating circumstances not known when sentence was pronounced which require a mitigation of the penalty; or it may be that the conduct of the prisoner or his condition warrant the interposition of the pardoning power and the lightening of the punishment imposed. A person may, therefore, be legally employed to prepare a petition, collect evidence showing the right to a pardon, and submit the same, together with proper arguments, either oral or in writing, to the governor or other authority granting pardons. So it has been frequently held that contracts for the performance of legitimate professional services, such as have been mentioned, and which are openly presented and appeal directly to the judgment and reason of the authorities to whom they are presented, are valid; but there is a marked distinction between services like these and those contracted for in the present case. The consideration of the notes in this instance was personal influence and lobby services, not by any one skilled in such work, but because they had been instrumental in securing the conviction and of their opposition to the granting of the pardon which had been applied for. The purchase of personal influence to obtain a pardon or to control the operations of any department of the government is immoral and pernicious in tendency, and cannot receive the sanction of courts. Aside from the fact that the Sherrills agreed to use their personal influence, and had hired out their services to influence the action of the governor, there was a purchase of the withdrawal of their opposition, a sinister act for which no excuse can be given, and which is clearly inconsistent with public policy and sound morality.

Testimony tending to show that most of the considerations named in the agreement were free from taint or that no bad motives were entertained was not admissible and no error was committed by the court in excluding the same. The rule was stated in McBratney v. Chandler, 22 Kan. 692, 31 Am. Rep. 213:

"The contract of an attorney, for services as such, whether the services are to be rendered before a court, a department of the government, or a legislative body, is valid, and upon performance of the services a recovery can be had. The contract of a lobbyist, in the sense in which that term is now used, for his services as...