Hare v. McGue

LORIGAN, J.

This action was brought by plaintiff in his own behalf and as assignee of one John M. Bobinson, to recover the value of personal services rendered by both to defendant and for money expended by plaintiff in his behalf.

Differences had arisen between defendant and his wife, and she threatening an action for divorce, he, with a vew of making a defense thereto, employed plaintiff and Bobinson, the

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former to look up the acts and conduct and past history of the wife and her conduct and life during his employment, and to locate, interview, and secure witnesses to testify on behalf of defendant; also to advise and consult with defendant concerning said action and to direct certain of his business affairs. Robinson was employed and directed to watch and shadow the wife of defendant, to ascertain her conduct, habits, and companions, and to secure the names and whereabouts of certain witnesses defendant desired to testify in his behalf in said divorce action. The court made findings of fact as above recited and entered a judgment in favor of plaintiff, from which, and an order denying his motion for a new trial, defendant appeals.

While in the transcript there are various assignments of error, the sole point urged here by appellant for a reversal is that the contracts made the basis of the cause of action and as found by the court are contrary to public policy and void, and no recovery should have been had upon them. In elaboration of this proposition of law appellant asserts that any contract between parties which has for its object the dissolution of the marriage relation, or facilitating that result, is contrary to good morals and void; that further, any contract having for its object the procurement of testimony for the purpose of securing a divorce, is illegal and void.

There can be no question about the legal proposition asserted by appellant. We must accept as clearly established that the law is extremely solicitous about the maintenance of the marriage relation, and will not tolerate or' sanction any contract which by its terms or obvious tendency has for its object the securing of a divorce. The further proposition, extending, however, not particularly to divorce suits, but to all kinds of litigation, is equally true, that a contract is void whereby one agrees to obtain or procure testimony of certain facts which will successfully support or defeat a lawsuit, or which provides that payment to the party procuring such testimony is to be contingent upon the result of the action for which he is engaged to procure it. It is the element of payment contingent on the success of the litigation in which the evidence is to be produced, or the fact that the agreement is to procure evidence not of facts as they exist, but of particular facts necessary to the success of the party litigant who contracted for their production, which vitiates the contract. It is the