Wood v. Casserleigh

• Decision Date: 01 December 1902
• Citation: 30 Colo. 287,71 P. 360
• Parties: WOOD et al. v. CASSERLEIGH.
• Court: Colorado Supreme Court

71 P. 360

30 Colo. 287

WOOD et al. v. CASSERLEIGH.

Supreme Court of Colorado

December 1, 1902

Error to district court, Arapahoe county.

Action by J. H. Casserleigh against Thomas E. Wood and others.There was a judgment for plaintiff, and defendants bring error.Affirmed.

H. L. McNair and Thomas, Bryant & Lee, for plaintiffs in error.

Frank J. Mott and George W. Taylor, for defendant in error.

GABBERT J.

Plaintiffs in error Thomas E. and Charles E. Wood were the owners of an interest in a mining claim then in the possession of, and for a long time operated by, other parties.Their ancestor was one of the locators of these mining premises.For the purpose of having proceedings instituted to recover their interest in this property, they entered into an agreement with defendant in error, which though inartificially drawn, in substance recited and provided that the latter was then in possession of the evidence necessary to establish the citizenship of their ancestor, and that in consideration of its production by him, and the prosecution of an action in their behalf upon his part to establish their rights, they were to give him a specified interest in the amount recovered of the parties who had been operating the mining premises, and a like share in any interest which they might recover in such premises.In pursuance of this agreement, defendant in error employed counsel to prosecute an action on behalf of the Woods, with the result that they recovered judgment for a large sum, and also a decree for an interest in the mining premises in dispute.The defendant in error, as plaintiff, brought an action against the plaintiffs in error to enforce his contract.From a judgment in his favor, the latter bring the case here for review.

The first point made by their counsel is that the contract above referred to is illegal, in that it is contrary to public policy.This is based upon the assumption that from its own terms, and as disclosed by the record, its manifest tendency was to pervert justice.It appears that, some time prior to the date when the contract in question was entered into plaintiff had been employed by another party for the express purpose of collecting testimony which would establish the citizenship of their ancestor; that counsel then employed by this party deemed this question of fact the crucial one, and that, unless established, the Woods could not successfully maintain any action; that plaintiff, in pursuance of this employment, learned that deceased had at one time entered government land in the state of Kansas, and, with this clue ascertained the court before which he had declared his intention to become a citizen of the United States.It also appears that deceased had been known in Kansas as James Wood.He had located the premises in dispute under the name of W. J. Wood, and it was therefore necessary to establish that James Wood was the same person as W. J. Wood, the locator.This was shown by parol testimony of parties who knew James Wood in Kansas, in connection with a photograph of W. J. Wood, which had been furnished by one of the defendants.This information, it appears, had been collected, or the witnesses had been procured who would testify to the facts above referred to, prior to the time when he entered into the contract with the defendants.Agreements to pay for collecting and procuring testimony of a certain character, to be used in evidence, coupled with the condition that the contractee's right to compensation depends upon the character of the testimony, or the result of the suit in which it is to be used, have been universally condemned by the courts as contrary to public policy, for the reason that such agreements hold out an inducement to commit fraud, or to procure persons to commit perjury.Before, however, a contract can be declared illegal upon the ground that it is against public policy, it must clearly appear that it is obnoxious to the pure administration of justice, or manifestly injurious to the interests of the public.The usual test to apply in determining these questions is whether the tendency of the contract is evil.15 Am. & Eng. Enc.Law, 934.The contract in question does not show upon its face that plaintiff was to procure testimony of any certain character, or furnish sufficient to establish the principal question of fact which was deemed material, but, on the contrary, simply required him to furnish evidence which was then in his possession, and which he had secured prior to the execution of the contract.It appears that plaintiff collected this testimony under a contract with the party by whom he had been employed, which in no manner rendered his compensation contingent upon the character of the testimony which he had been employed to procure, or the result of any action in which it might be used.On the contrary, for the services thus performed he was paid or promised a specific compensation, in no manner contingent upon his success.It cannot be said, therefore, that the agreement of the plaintiff to furnish the testimony referred to in the contract, or any act upon his part in securing it, would involve the commission by him or by any other person of any act having the slightest taint of immorality, or which would be obnoxious to the pure administration of justice, or injurious to public interests, and therefore it is not void as against public policy.Casserleigh v. Wood, 14 Colo.App. 265, 59 P. 1024.

The next point made by counsel for defendants is that plaintiff did not own the evidence which he agreed to furnish.It appears that previous to entering into the contract he was employed by one Peter Finnerty to collect this testimony.After the death of the latter he entered into the contract in his own behalf, and filed a claim against the Finnerty estate.An allowance was made, which was afterwards compromised.The defendants are not in a position to raise the question regarding the ownership of the evidence.The estate cannot maintain an action against them on this account.The representatives of deceased have not intervened.No attempt was made to bring them in as parties to the action.The testimony was furnished by the plaintiff as agreed.In such circumstances, whatever the rights of the representatives of deceased may be is a question solely between the plaintiff and such representatives, and therefore one with which the defendants have no concern.

It is claimed by counsel for defendants that plaintiff is not entitled to a specific performance of his contract, for the reason that he did not advance the money necessary to carry on the litigation.Whatever the requirements of the contract may have been in this respect is immaterial.The suit was commenced by counsel employed by plaintiff, and prosecuted to a successful termination.Counsel thus employed was paid by him by an assignment of an interest in his contract with the Woods.While the contract may have been unilateral in the first instance, and specified various matters which plaintiff was required to perform, its main purpose was to provide for the prosecution of an action for the recovery of the interest of the defendants.This has been done, and has resulted in a judgment in favor of the Woods.Hence the contract is now mutual and obligatory upon each.Frue v. Houghton, 6 Colo. 318.Defendants may have demanded the money which they cl...