Bergen v. Frisbie

GAROUTTE, J. Defendant Frisbie had certain matters pertaining to timber land entries made by him pending before the secretary of the interior at Washington. He had paid two thousand and fifty dollars to the government upon these entries, and was desirous of the issuance of the patents to him for the land. These matters had been long delayed in the land department, whereupon defendant entered into a contract with plaintiffs, whereby he engaged their services as attorneys for the purpose of having the said entries ratified and declared valid; and [169]if such ratification and confirmation could not be accomplished, then to take action to recover from the government the said sum of two thousand and fifty dollars, paid as aforesaid.

This contract provided: “In consideration of such services the said party of the first part has this day .... and in addition, provided said parties of the second part succeed in securing a favorable and final decision in favor of said entries, the said party of the first part will pay the said attorneys ten per cent of the then value of the lands embraced in said entries, and should the said attorneys fail in securing such favorable decision, but in lieu of which they succeed in having the United States refund the said two thousand and fifty dollars to the said party of the first part, then and in that case the said party of the first part agrees to pay the said attorneys five per cent of the amount so recovered.” Under this contract plaintiffs wrote various letters to the land department at Washington, urging an early decision of the pending matters, and also retained a firm of attorneys at that place to assist in securing a favorable conclusion of the matters pending. In the course of time patents were issued to defendant, and thereafter plaintiffs brought this action-under the contract to recover ten per cent of the value of the land as their compensation. Judgment went for plaintiffs, and defendant has appealed from the judgment and order denying his motion for a new trial.

Defendant declares that: “The contract relied upon by the plaintiffs was for services to be performed by them for the defendant by influencing the official action of public officers of the government favorable to the defendant on matters then pending before such officers for compensation contingent upon success. Such a contract is void as against good morals and public policy, and the performance of the services under such a contract affords no ground of recovery.” He attaches much importance to the fact that the fee fixed by the contract for the services to be performed was dependent upon success, namely, issuance of the patents. As tending to indicate the immorality of the contract, the contingent character of the fee works no such result. The contract is good or bad, regardless of that question. (Hoffman v. Vallejo, 45 Cal. 564; Stanton v. Embry, 93 U. S. 548.)