0.A.SES ON AGENOY.

[ Book I

CHAPTER II.
FOR WHAT PURPOSES AN AGENCY MAY BE CREATED.

{113 M ASSA.CHUSETTS, 133, 18 Ax. REP. 4.59. )

RI CE vs. WOOD.
( Supreme J udicial Court of Massachusetts, September, 1873.)

Action in contract to recover commissions as a broker. Defend-

ant requested the conrt to charge that a broker acting for both
parties cannot recover commissions from either, nnless both knew
of and assented to his double agency. The court, however,
charged that he could recover from the party who bad knowledge
of it. Plaintiff recovered and defendant alleged exceptions.
F. T. Blackmer, for defendant.
W. A . Gile and 0. A. Merrill, for plaintiffs.
DB\ENS, J . I n this case there was evidence at the trial in the
conrt below that the plaintiffs had been employed by a third person,
who had promised to pay them a commission therefor, to dispose
of cel'tain real estate, and that afterward, without the knowledge
of such person, an agreement was made between the plaintiffs
and th e defendant, by which the plaintiffs were employed to act
for the defendant in the exchange of certain stocks held by him for
real estate, and were promised a commission if such exchange
shonld be effected, the defendant knowing at the time that the
plaintiffs were employed for a commission to sell snch real estate;
and further, that afterward the plaintifis introduced the defendant
to the owner of such real estate and by the instrumentality of the
plaiAtiffs the exchange of defendant's stock for such real estate was
effected.
If this were an action by the plaintiffs against the owner of the
real estate, for commissions earned in disposing thereof, the decis-
ion of this court in Farnsworth t•B. IIemmer, 1 Allen (Mass.) 494,
would be exclusive against the claim, npon the ground that the
plaintiffs, if such f acts should be proved, bad entered into a relation
inconsistent with the confidence reposed in them by such owner,
Chap. II] RIOE VS. WOOD. 13

and placed themselves in a position antagonistic to bis interests.

This case presents, howevor, the question whether, conceding that
the plaintiffs could not recover their commissions from the owner
of the real estate, they may not recover those they claim to be
entitled to from the defendant, as he knew fully, at the time of
entering into bis contract, the relation in which the plaintiffs stood
to the third party. It was the duty o! the plaintiffs to get the
highest price for the real estate that could be obtained for it in the
market; while the contract between the plaintiffs and the defend-
ant was an inducement to the plaintiffs to effect a sale to the
defendant, even if it was on lower terms than might have been
obtained from others, because they thereby secured their commis-
sions from both parties. It was therefore an agreement which
placed the plaintiffs under the temptation to deal unjustly with the
owner of the real estate. Walker vs. Osgood, 98 Mass. 348. Con-
tracts which are opposed to open, upright and fair dealing are
opposed to public policy. A contract by which one is placed under
a direct inducement to violate the confidence reposed in him by
another is of this character. If the plaintiffs were guilty of injus-
tice to the owner of the real estate, by placing themselves under
an inducement to pa.rt with it at less than its full market v::iJue,
they should not be allowed to collect the promised commissions on
the sale of the stock, which was the consideration for which they
put themselves in snch a position. No one can be permitted to
found rights npon his own wrong, even against another also in
the wrong. A promise made to one in consideration of doing an
unlawful act, as to commit an assault or to practice a !rand upon
a third person. is void in law; and the law will not only a.void con-
tracts the avowed purpose or express object of which is to do a.n
unlawful act, bnt those made with a view to place, or thenecessary
effect of which is to place a person under wrong influences, and
offer him a temptation which may injuriously afiect the rights of
third persons. Nor is it necessary to show that injury to third
persons has actually resulted from such a contract, for in many
cases where it had occurred this would be impossible to be proved.
The contract is avoided on account of its necessarily injurious
tendency. Fuller vs. .Dame, 18 Pick. (Mass.) 472. We are of
opinion, therefore, that the judge who presided at the trial erred in
the instruction given, and that the defendant was entitled to an
instruction substantially like that asked for. Nor can the r uling
be sustained upon the ground suggested at the bar, that the plaint-
14 O ASES ON AGENCY. [ Book I

iffs were middle-men only, bringing the parties together and doing
nothing further, the parties themselves making the contract. I n
Rupp vs. Sampson, 16 Gray (Mass.) 398, the plaintiff was permit-
ted to recover, not for services rendered to the defendant as s.
broker, but for the performance of a certain specific act, nameJv,
the introduction of the other party to him, the parties after such
in trodnction making their own con tract. • H was there held that
this was not such a fraud upon the other party, who also paid for
the service of the plaintllf in introducing him, although concealed
from such party, as to make the contra.ct of the plaintiff with
the defendant void for illegality. That, however, is not the pres-
ent case.
It here appears, by the bill of exceptions, not only that there
was evidence that the plaintiffs introduced the parties, but that,
through the instrumentality of the plaintiffs, the exchange was
effected, and that in effecting such exchange the plaintiffs acted as
brokers for both parties. It is to be observed also, that both the
instructions asked for by the defendant aucl those given by the
presiding judge proceed upon the ground that the plaintiffs were
brokers and not micldle-men only.
Exceptions sustained.

(76 MISSOURI , 100, 4:2 AM. REP. 385.)

ATLEE vs. FINK.

(Supreme Court of Missouri, October, 1881.j

Action on account. The opinion states thf1 facts. Defendant

had judgment below.
Tomlinson & Ross, for appellant.
J. D. S. Cook, for respondent.
IlENRY, J . Plaintiffs sued defendant for balance on account
for lumber sold, $497. 68. In his answer, defendant admits the
purchase, but his defense is, that there is in tho account an over-
charge of $35, that he is entitled to a credit of $184.36 paid on
the account and that plaintifi's owe him Ei2G l, as commission on
lumber sold by plaintiffs to defendant's employers, on defendant's
recommendation, for which he alleges plaintiffs a.greed to pay
•See Ranney v. Donovan, 78 Mich. 818, to same effect.
Ohap. II] ATLEE YB. FINK. 16

him a commission of two and one-half per cent. All o! these allo.
gations were denied by plaiutifls' replication. The defendant
obtained a judgment for $38. 73, from which plaintiffs appeal.
The evidence shows that plaintiffs resided at Fort .Madison,
I owa, and were engaged in manufacturing and selling lumber;
that they established a branch of their business at Kansas Oity,
Missouri, and placed J. O'Sullivan in charge of it, to sell lumber.
O'Sullivan testifies tbat he was employed by plaintiffs to sell their
lumber. Samuel Atlee, one of plaintiffs, testifies that O'Sullivan
was not authorized to make any agreement to pay commissions to
other persons for selling their lumber. The firm paid O'S ullivan
a salary of $1,800 per annum. The defendant, Fink, testifies that
he, O'Sullivan and W. H. Atlee (who was not a member of the
firm of plaintiffs), were together when O'Sullivan and defend-
ant made the agreement by which the latter was to receive the
commission on 1tales O'Sullivan might mske to defendant's
employers through defendant's influence with them; that his
employers paid him for superintending the erection of the various
buildings erected by them, and it was his duty to keep the laborers
at work, and see about materials and all details; that his employers
would pay no bills for labor or lumber until certified by defendant
to be correct; that he never informed them or any of them that he
wa.a to get a commission on the lumber purchased by them of
plaintiffs. This is the substance of the testimony on the only
branch of the case which we deem it necessary to consider.
O'Sullivan was not expressly, or by the nature of his employ-
ment, authorized to make the contract in question. He was, s.s he
testified, but an agent to sell, and could not delegate that authority
to another. Especially was he not authorized to promise a com-
pensation for sales made for the firm by others, w hieh would bind
the firm. Story on Agency (6th. ed.), sec. 387; Warner vs. Martin,
11 How. (U. S.) 209.
But it is unnecessary to extend our remarks on that proposition,
because if O'Sullivan had had ample authority to make snch a con-
tract, it is contrary to public policy to allow the plaintiffs to
recover on it. Fink was employed by others to transact business for
them, and they paid no bills for lumber not certified by him to be
correct, and for two and one-half per cent. commission on sales to
his employees, he sold his influence with them to the plaintiffs.
He kept them in ignorance of the agreement he bad made with
O'Sullivan. That agreement was a temptation to him to certify
16 OASES ON AC:rENCY. [ Book I

a.a correct bills for lumber which might be incorrect, both as to the
a.mount of lumber and the prices charged. His compensation
could be increased by such conduct, and it is no answer that noth4
ing of the kind occurred. In Fuller vs. Dame, 18 Pick. (Mass.)
472, the court said : "The law avoids contracts and promises made
with a view to place one under wrong influences; those which offer
him a temptation to do that which may affect injuriously the right
and interests of third persons." In Sp inks vs. Davis, 32 Miss. 152,
the court said: "It is a sufficient objection to a contract on the
ground of public policy, that it has a direct tendency to induce
fraud and malpractice upon the rights of others, or the violation or
neglect of high public duties." One employed by another to
transact business for him has no right to enter into a. contract with
a third person, which would place it in his power to wrong his
principal in the transaction of the business of the latter, and which
would tempt a bad man to act in bad faith towards his employer.
The interests of the defendant's employers and those of plaintiffs, as
buyers and sellers, were antagonistic, and defendant could not
serve two masters in a matter in which there was such a conftict in
their interests. It makes no dillerence that defendant was
not employed to purchase the lumber for his employers. It is
enough that it was his duty, under his employment, to examine and
certify to the correctness of the lumber bills.
Under this view, it is wholly immaterial whether the agreement
made by O'Sullivan with the defendant was ratified or not by the
plaintiffs. The ratification of the contract would not have elimi-
nated the element which rendered it invalid. The trial court
entertained a different view of the subject, and embodied, in
instructions given, that erroneous view, and refused instructions
asked by plaintiffs which declared the law as herein announced,
and its judgment is therefore reversed and the cause remanded.
Reversed and remande~
Non.-See also Smith vs. Sorby, L. R. 8 Q. B. Div., 1552, 28 Monk's Eng.
Rep. 455; Harrington va. Victoria (}raving Docl' Co., L. R. 8 Q. B. Div.•
M9, 28 Eng. Rep. 463.
Ohap. II] MrL1,s vs. if ILLS. 17

(40 NEw Yo1iK, 54.:J,100 A.\L DEc. 635.)

liIILLS vs. MILLS.

(Court of .d.J>]Jeals of New I"ork, June, 1869.)

Action for the specific rcriorn1ance of a contract to convey cer-

tain real estate, Lrooght by William T. Mills against David S.
Mills. The court Lelow dismissed the complaint upon the ground
that the contract relied upon was illegal and void. Plaintill
appeals.
Samuel D. .!Jlorris, for appellant.
Albert Matliews, for respondent.
By the Conrt, IlUNT, C. J. The question of the effect of agre&-
menta of this character hns been recently considerec1 in this court:
Lyon, vs. Mitchell, 36 N. Y. 235, 93 Am. Dec. 502; see also the
dissenting opinion of Juclge Oro,er at page 682. Tho agreo-
ment in question is fo unded nron an undertaking on the part of
the plaintiff, reciting tbat a bill was pending in tho Senate, which
granted unto the plaintiff a certain railroad franchise in the city
of Brooklyn, and promising " to give all the aicl in his power,
spend such reasonable time as may be n ecessary, and gener ally to
nse his utmost influence and exertions to procure the passage into
a law of the bill heretofore introduced into the Senato of the State
of New York." It was further agreed that the said bill should be so
a.mended as to limit the grant therein to the parties to this agree-
ment; or that it should be amended as, from time to time, should
be agreed by the said parties and, when p~£scd, the right should
be transferred to David S. Tho pbintifi further agreetl that ho
would not "co-operate or conspire" with any otlier person, or give
any a.id or countenance to the introduction into the legislature by
any other person of a similar propositiou.
It is not suggested that the plaintiff was a. professionn.l man,
whose calling it was to address legislative committees. It ia noi
suggested that be had any dnim of right, which ho proposed to
advocate, and which right or debt ho proposecl to trnnsfor to the
defondant. Ile had simply nskccl of the lcgi::;laturo llio prh-ilege or
favo1· to be granted to him of building and operating a railroad
upon certain streets o! the city of Brooklyn. This privilcgo Ju.ay
2
18 0.A.SES ON AGENCY. [Book I

be assumed to be of pecuniary value. T o procure the passage of

such a law for the benefit of the defendant, he undertook to use
his utmost influence and exertions. T his contract is void a~ against
public policy. It is a contract leading to secret, improper and cor-
rupt tampermg with legislative action. See Lyon vs. Mitchell,
supra, and cases cited; see, also, Fuller vs. Dams, 18 Pick. (Mass. )
479; Sedgwick vs. Staunton, 14 N. Y . 289; Frost vs. Belmont, 6
Allen (Mass.), 159; Powers vs. Skinner, 34 Vt. 281, 80 Am. Dec.
677. It is not necessary to adjudge that the pn.rties stipulated for
corrupt action, or that they intended that secret and improper
resorts should be had. It is enough that the contract tends directly
to those results. It furnishes a temptation to the plaintiff to resort
to corrupt means or improper devices to influence legislative action.
It tends to subject the legislature to influences destructive of it.a
character, and fatal to :public confidence in its action. Clippinger
va. Hspbaugh, 5 Watts & S. (Penn.) 315, 40 Am. Dec. 519; Fuller
vs. Dams, supra.
The case was correctly decided, and the judgment should be
affirmed.
NoTE.-See, also, Marshall vs. Railroad Co., 16 How. (U. S.) 814; Tri8t
(Jhild., 21 Wall (U. S.) 441; Weed vs. Black, 2 1\foAr. (D. C.) 268, 29 Am.
t1S.
Rep. 618; McBratney vs. Chandler, 22 Kans. 692; Railway Co. va. Rail-
wa11 Co., 75 W.ia. 224.

( 98 INDIAN.A., 238, 49 Au. RE P. 74:6.)

ELKHART COUNTY LODGE vs. ORARY.

(Supreme Court of Indiana, May, 1884.)

The owners o.f land in a city agreed with the owners of an adja-
cent building that if the latter would ofier that builuing to the
government for a postof:lice for a nominal rent for ten years, and
nse all "proper persuasion,, to secure its acceptance, they would
pay them a certain sum annually for that period, in case of the
government's acceptance. The building was accepted by the gov-
ernment, one of the owners, a personal friend of the postmaster-
gencral, truthfully representing that the situation was suitable, and
notes were given by the doienwmts !or the u.n.uual inatallmenta as
agreed.
Chap. II ] ELKHART Oou.NTY LoDOE vs. On.AnY. 19

T he actiou was UJlOn tho notes so given. Defendant had judg-

ment below .
.A.. D. Tril~on, J. ll. Baker and J . .A.. 8 . .Mitchell, for appellants.
Jr. L . Stuncx, for uppellee.
EtLIOrl', 0. J. (After stating tho facts): Tho material deduc-
tion of fact from these subsiclary facts is that the parties formed a
combination for the purpose of securing tho loca.tion of a public
office, and as part of the plan the a1)pella11 ts undertook that certain
individnals of their nnmLer should use their influence with the
government officers to efi'ect the pu1 pose of the com Li nation, and
that the agreement to pay for such senices was contingent upon
the success of the scheme.
It has long been estaLlished that a contract against public
p0!icy will not be enforced. This principle is firmly fi.s.ed and has
often been applied to contracts. 'l'here can therefore be no doubt
as ~o tbe existence of t he rule; the only question is as to its appli-
cability to the facts of this case.
Where the general public has an interest in the location of an
office, a railro:id station, or the like, a contract to secure its location
at a. particular place is held to be against public policy and not
enforceable. 'l'here are very many cases holding that an agreement
to locate a railroad station at a designated place in not eniorcenble
because against public policy. St. Louis, etc., R. B. Co. vs.
llfatlters, 104 Ill. 2.57; JJ illiamson vs. Chicago, etc., R . R. Co., 53
Iowa, 126, 36 Am. Rep. 206; vi<le authorities, n. 214. The principle
upon which these cases proceed is that the public good, and not
private interest, should control in the location of railroad depots,
and this principle certainly applies with full force to an office of a
purely public character, such as a postofilce. We find in these
railroad cases, and there are very many of them, a principle which
supplies a rule governing such a case as the present. It is true thu.t
there is some difference in tho views of the courts upon the question
whether an agreement for the location of a depot is niJid wbcn it
does not restrict the loca.tion to the place named, and no other, but
upon t he general principle there is entire harmony. In the present
case this diITerence in the opinions of the courts is an unimportant
consideration, for here the location is restricted to ono place und no

the holding of the cases most favorable to the uppcllants. "u

other, f or a period of ten yenrs, and the case therefor falls "ithin

that the location is restricted to one place for the ren::>on that it is
say
20 CASES ON AOE"NCY. [Book 1

a. matter of jndicinl knowledge that lint one postoflice can be located

in the city of Gosl1en. \Yhile tho c:..iscs of which we l.i::rre spoken
establicih a priuciple which rnles thi:; case, there are others'\ hich
in their general features more nearly rc6emble tho one at bar.
Closely analogous in principle are those cases w!1i(..h hold that con-
tracts which may tencl to the injury CJf tl1e I nblic sen ice are void.
Card vs. Hope, 2 B. & 0. GCl; Wells l'S. fiusier, 8 l\L & ·w. 149.
Blacl..ford vs. Prestou, 8 T. R 8£1; Tool Co. 1.·s....\orris, 2 Wall;
(U. S.) 45; Ash burner vs. Parish, 81 P~nn . St. 52.
T here are many phases of injury to the public senice, and we do
not deem it necessary to examine tho cases upon the subject, for
we think it quite clear that a contract which is made for the pur-
pose of securing the loc::ition of nn im11ortant oflicc connected with
the public service, for indid<lnal benefit, r:1ther tcan for the public
good1 tends to the injury of the public ser•il.!e. The case macle by
the e\·idence falls fully within the principle thnt contrncts which
tend to improperly inf~ncnce those engag<·d in the public service,
or which teud to subordina.te the public welfare to iudidclaal gain,
are not enforceable in any court of justice. P ollock, Priu. Cont. 27D;
An son, Cont. 17.3; 1 'Whart. Cont. secs. 402 to 414. inelusive. A
wholesome rnle of law is tl r.t parties should not be permitted to
make contracts which are likely to set priv~te interests in opposi-
tion to public duty or to tlie public welfare. This rule is recognized
in onr own case of Maguire l'.S. ·"'mock, H Incl. 1, 13 Am. Rep. 35;3,
where it was held tha~ an agrcemeut to pay a consideration to a
property owner for signing n petition to secure the improvement
o:f a. street was void, although there was no fraud . au<l although
the pel'son to v;hoL1 the promise was made was really in favor of
the improvement.
It is not necessary that actual fraud shoulJ be shown, for a. con-
tract which tends to the injury of tho public sen-ice is void,
a.lthongh the parties enter1::d into it ho11c:;tly and prot:ccde<l under
it in good faith. 'l'hc courts do not inquire into the motives of
the parties in the particular case to ascertain wlictl.er they were
corrupt or not, but stop vd1en it i3 asccrtaiue<l that the contract is
one which is opposed. to public policy. Nor is it ncccs3ary to sLow
tha.t any evil was iu fact <lone Ly or throu;;h tho contract. 'l'he
purpose of tho rule is to prevent pnsons frorn assuming a position
whoro selfish uH1livcs may impel them to i;acriilco tho public good
to pri vate benefit. Au Euglish author says: "llut au agree-
ment which has an apparent tendency thut way, though an iulcu-
C hap. II] ELKIIART C OUNTY Louoi:: v.s. CnARY. 21
tion t o nso unlawfn1 moans be not admitted, or even be nominally
disclaimed, will equally be hclcl void." Polloek, Prin. Cont. 2SG.
In t he case of 'l ool ( 'o. tis. Xon·is, supra, the court sai(1 : " All
ngrc~ments for pecuniary considerations to control the business
operations of the go,crnment, or the rrgulnr administration of
just ice, or the appointment to public offices, or the ordinary course
of legislation, are void as against public policy without reference
to t he question whether impro1Jer means are conLcmpluted or used
in t heir execution. The law looks to the general tendency of such
agreements; and it closes the door to temptation by refusing them
recognition in nny of the co·irts of the country."
T he case in hand is plainly distingnisllnble from those in which
a promise is made to tho public through its rcpresentati\'es. H ere
the motive of the contracting parties was to secure the location of
a public office to advance their private interm;ts, and not to bcnctt
t he p ublic, and here too there was competion between two locali-
ties. T he case therefore is one in which there should have been no
inftuencc brought to bear npon the decision of the contest except
that of the puLlic good.
T he cases of Pe,rce vs. Rulty, 5 Incl. 69; Commissioners vs.
P erry, 5 Ohio, 56; Stale Treasurer v.s. Cross, 9 Yt. 2&0, 31 Am.
Dec. 626, bold that a. contract with the officers of tho State for the
ben efit of the State is rnlicl, but they clearly distinguish between
t he cases where a promise is made to an indh·idnal for his private
benefit, and those in which the promise is made to a pnulic officer
for the benefit of the public. This distinction is made in the case
of State 1•s. Johnson, 52 Ind. 197, and in the course of the opinion
th e following e:xtract from the decision in C'li11 i ngcr t•s. Hep-
ba11gli, 5 ·watts & S. (Penn.) 312, 4.0 Am. Dec. 519, is approvingly
quoted : " It matters not that i10thing improper was done or was
expected to be done by the plaintiff. It is enough that such is tho
tendency of the contract, that it is contrary to sound morality and
public policy, leading nee;cssnrily in the hands of designing and
corrupt men, to improper tnmpcring with members, and the use of
an extraneous, secret influence over au im1rnrtan t branch of the
government." The difference between the two clnsscs of cases is
~!early stated in Odmeal t'. Barry, 24 :Miss. 9, "here it was enicl:
" The members of the bonrJ of police, us indh·idnals, will not
r eceive any portion of the money for which tho note wa.-; gircn.
At the time of the contract iL was not iuteudcd or expected thnt
t hey should receire it. It was not a J>roposition by the defendnnti
22 CA.SES ON AGENCY. [ Book I

to pay them so much as individuals, in consideration that they

would not change the site of the court house. If it had been, it
would have been clearly illegal, and could not ha'e been enforced."
It is true that a contract to pay for professional serriccs in fairly
placing the facts of a case before the officers of government is
r-alid. Trist vs. Ohild, 21 Wall. (U. S.) 441; Smith Lead. Cases,
(7th Am. ed.) 692; Bryan t'"· Reynold,'I, 5 Wis. 200, GS Am. Dec.
65. But the contract in this case is not for professional services
but for personal influence, and this constitutes an essential ele-
ment, for personal influence is not a. commodity for which money
can be demanded. The cnse of Oscanyan t•s . .Arms (Jo., 103 U.
S. 261, cited by appellants is directly against tbe:m upon this point.
In the course of the opinion in that case it" ns sriid: "But inde.
pendently of the official relation of the plaintifi to his govern-
ment, the personal influence which he stipulated to exert upon
another officer of that go\ernment, was not the suLject of bargain
and sale. P ersonal influence to be exercised over an officer of
government in the procurement of contracts • • • is not
a vendible article in our system of laws and mornls, and the courts
of the United States will not lend their aid to the >endor to collect
the price of the article. Numerous adjudications to this effect are
found in the state and federal courts. This is true when the
vendor holds no official relations with the gor-ernment, though the
turpitude of the transaction becomes more glaring when he is also
its officer." In r.rrist t·s. Child, supra, the court in speaking of
professional services said: "But such services are separated by a
broad line of demarcation from personal solicitation."
While contracts for the payment of fi::red fees for profe~sional
services are valid, yet when the fees are made contingent upon suc-
cess in obtaining the desired legislation, the contra.ct sought, or the
officer asked of the gorernmcnt, the contract becomes so t ainted
with illegalily as to render it void. "lligh contingent compensa-
tion," said Justice Grier, "must necessarily lead to the· use of
improper means and the exercise of undue influence," and the
decisions give approval lo his discussion of the question o! the
legality of such contracts, and concur in the conclusion that all
such contracts are against EOnnd pnl>lic policy. Marshall t'S.
Baltimore, etc. , R. l'o., 16 Ilow. (U. S.) 314; Meguire 1'S. Oor-
wine, 101 U. S. 108; Oscanyan vs. Arms Go., &upra, see OJJinion,
p. 274; Olippi1.ger vs. llepbauglz, s1tpra.; Wood t•& • .Mcl'am1, 6 Dana,
(Ky.) 3G6; Mills vs. Mills, 4.0 N. Y. 643, 100 Am. Dco. 535 (ante,
Ohap. II] ELKIIART COUNTY LoDO E vs. CnAnY. 23

p. 17) ; Ormerod vs. Dearman, 100 P enn. St. 561, 45 Am. Rep. 3!:11.
T he contract before us has two infirmities, one of an agreement
for the use of personal influence, and another of an agreement for
compensation dependent upon the contingency of success. That
we are correct in saying that the agreement is dependent upon a
contingency is shown by the fact that the consideration became
payable only in the event that the post-office was located and main-
tained in appellants' building.
Doubtless a contract to assist a property owner in fitting np or
purchasing a building to be given to the gonrnment for public
use would be valid, but in the present instance this was not the
character of the consideration of the notes in snit, although such
an element may have form ed part of the consideration. The con-
sideration of the notes is indivisible and the illegal cannot be sepa-
rated from the legal, and under the familiar rule that where the
oonsidera.tion is in part illegal and there can be no separation the
whole contract is void, the contract before us must be held invalid
because of the illegality of the consideration.
.Affirmed..
NOTB.-Compare with Beal v. Polhemus, 67 Mich. 180.

(8t I LLI NOI S, 174, 25 .AM. Il.EP. 442,)

BYRD vs. HUGIIES.

( Supreme Court of Illinois, September, 1876.)

This was a bill in equity, brought by George V . Byrd against

George R. H. Ilugbes, to compel an accounting and & division of
certain property, which the defendant was alleged to have obtnined
for services as agent or attorney of certain parties who wore residents
of the State of Virginia.. T he facts as stated in the bill sufficiently
appear in t he closing part of t he opinion.
J. W. Beach, for appellant.
Lawrence, Campbell & Lawrence, for appellee.
On.uG, J . (After stating tho facts.) The transaction, when prop-
erly analyzed, is this: T he complainant was the agent an<l con-
fidential advisor of Tnrner and Washington, who reaidcd in Vir-
ginia, and had large real estate interests in Chicago. They had in
t heir service a distinguished lawyer in Chicago, to attend to such
 CASES ON AGENCY. [ Book I

legal business as would necessarily grow ont of the money they had
invested and W"cre investing in Cook county.
The complainant, W"hosc duty it was to guard and protect the
interests of Tn\·ncr and Washington, whose agent he was, and give
them honest advice, and not place himself in a po~ition W"here there
would be a conflict between duty on the one hand, and self-interest
on the other, in atter disregard of these well-known and wholesome
principles, entered upon the task t o induce his principals to dis-
charge their attorney and employ, in his stead, the defendant.
What was the obj ect? Surely not to enhance the interest of his
principals, because he concedes that t hey had in their service an
attorney of skill and learning. But the sole object was, that he
might obtain one-half of all fees that the attorney might earn in
the transaction of bis priucip·1ls' business. The complainant, as
we learn from the bill, at last succec:<lcd in inducing his principals
to discharge their attorney and employ the defendant, and now,
as the attorney refuses to di·ritle thCI fees thus earned of appellant's
principals, he calls upon a court of equity to enforce his illegal
contract.
We are a.ware of no principle of equity jurisprudence which
would allow a court of eqnity to lend its aiu to a.ssi::;t the complain-
ant in the collection of fees earned nuder n contract based, as this
one is, upon a consideration immoral and illeglll. A coutr!l.ct based
upon an illegal considerution could not be enfoiccd in n. court of
law, much less woulcl a court of equity, where a complainant is
required to come into court wiLh clean hands, enforce the per-
fo rmance of a contract founded u1 1on an illcJal consideration.
But e\en if the coutract set up in tho bill rested upon a. valid
consideration, we perceive no gronutl upon which the bill could bo
maintained. St.ppose tbc defc1ulunt was associated with the com-
plainant in the agency and retained a.s the attorney of Washington
and Turner, under an urraHgcment that ho would divide fees with
the compluinant-whcn W nshington and Turner clischa.rged the .
complainant, that terminated the arrangement.
T he contract was iu tl•e natnro of a partnership which might be
terminated nt such time as citlier party saw proper to withdraw.
It is true neitlier withdrew, but Washington aucl Tarner terminated
the arran gement 1Jy discharging U1e complainant from tho manage-
ment of t ho bnsincss. 'The mere fact that they saw proper,
after complainant was no longer an agent, to enter upon a new
contract with the dc!cn<lant, unclor which ho performed service and
Cb~Lp. II ] BYRD vs. lluonEs. 25

earned large fees, can be no ground for allowing the complainant

t o come in and sliaro with him.
It is not claimed, in tho bill, tl1at fees were earned while the
complainant was acting in connection with the defcnrlnnt, and
have not been accounted !or, but the comr>laint is, fees were earned
long after complainant bad been discharged from the business,
under a written contract the defendant made, to which the com-
plainant was an utter stranger.
We perceive no ground upon which the bil1 can be sustained.
NOTE.-See nlso llfe(]Uire vs. Corwine, 101 U. S. 108; West t'B. Camden,
135 U. S. 507; I'\oel 1·s. Dral:e, 28 Kans. 2G5, 42 ..lm. Rl•p. Hl2; Ilofoomo vs.
Weaverr 186 Maas. 2G5; Bollman vs. Loomis, 41 Conn. 681.