Wilhelm v. Rush

BISHOP, J.,

pro

tem.

Plaintiff, feeling aggrieved by a judgment that he take nothing, has appealed. Because we are unable to agree with him that the provision of his contract was illegal, which made his right to recover additional compensation dependent upon the successful outcome of some litigation, we are affirming the judgment.

Plaintiff’s contract was with the defendant, a member of our bar, who was representing a client in some pending litigation and expecting to represent him in some actions to be brought. The client had claimed that fraud had been perpetrated upon him with respect to the matters in litigation and the defendant “engaged plaintiff”, to use the language 'of the findings, “to render and furnish to defendant certain work, labor and services, consisting in part of accounting services, and in part of investigation and research, having as its object the procuring and furnishing, for such proper use as defendant might see fit to make thereof, such discoverable evidence of actual, existing facts as would tend to support” the claims of fraud referred to. A retainer of $500 was to be paid plaintiff and all actual expenses to which he was put were to be repaid him. The findings continue that it was agreed “that in the event of any recovery by”

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the client “from said claims, actions or litigation, as aforesaid, there should be paid to the plaintiff by the defendant additional compensation for said work, labor and services, said additional compensation to be payable only upon and in the event of some recovery by” the client “from said claims, actions or litigation”. Plaintiff has been paid the $500 and further sums “far in excess” of his expenses. The client, up to the time of the trial of this action, had recovered nothing.

Measured by the contract, the judgment was correct; plaintiff was not entitled to recover anything at this stage of the proceedings. His argument is that the contract should he disregarded, because its provisions are against public policy and hence illegal, and that he should be allowed to recover the reasonable value of his services now.

In the cases which deal with contracts in general such as the one we have under consideration, the provisions found to be illegal because offensive to public policy fall into two groups: those in which the object is illegal and those in which the terms of compensation are unenforceable. The object of ■the contract is held to be invalid where that which is sought is evidence or witnesses to attain a definite objective. The case of