Howland v. Coffin , 32 How. Pr. 300 ( 1866 )

By the court, Clerks, J.

I. The respondents’ counsel makes a point that there is no judgment in this case, and, therefore, nothing to appeal from. The final order provides that the plaintiff recover of the defendants $42.05 damages, without costs, and that the defendants recover of the plaintiff $42.05 for costs and disbursements, and that the said judgments offset each other. Thus they neutralize each other; but does it follow that there is no judgment ? This order is something; it is a decision—a final decision—and what can that be but a judgment ? The respondents’ counsel is not correct, therefore, in saying there is nothing to appeal from. There is something, and that something must be deemed nothing else than a judgment—a judgment by which the plaintiff considers he has suffered' wrong, and which he maintains is erroneous. The right of appeal could be effectually destroyed in many cases by a judge, if an arrangement of this nature should have the effect claimed by the defendants’ counsel. A judgment, whatever may be its provisions, is the final determination of the rights of the parties (Code, § 245).

II. I do not think that the contract upon which the plaintiff sues is void on the ground that it contravenes public policy. Sedgwick agt. Stanton (14 N. Y. R. 289), gives us the law very distinctly on this point. Contracts illegal1 at common law, as being contrary to public policy, are those which injuriously affect or subvert the public interest. By the. written contract in the case above referred to, the assignor of the plaintiff undertook to obtain, at his own expense, from the state for Stanton, a title to a lot in Syracuse, which Stanton then occupied and used for a store-yard, for which service Stanton agreed to convey, when the title should be obtained, one undivided half of the said lot. It was held that no public interest was violated in the performance of this contract. Its purpose was to induce the commissioners of the land office to act upon the question of Stanton’s preemptive right to the lot. It was declared valid, and the judgment against Stanton was affirmed.

In Mills agt. Mills (36 Barb. 474), the agreement was to convey land to another upon the consideration that the latter would give all the aid in his power, spend his time and use Ms utmost influence and exertions to procure the passage of a law pending before the legislature, granting authority to the covenantor to construct a rail track for the running of cars on Division avenue, Williamsburgh. In the language óf the justice who delivered the opinion in this case, “the plaintiff was not employed as he lawfully might be to prosecute a private claim, nor to collect information, prepare statements and furnish arguments freely and openly to a legislative committee, in favor of any public measure which might incidentally benefit individuals but he was to use such exertions and influences covertly, as have done so much to corrupt the public morals and impair the public virtue of the state and nation. It was held, that although some of the other considerations mentioned in the agreement were unexceptionable, it was nevertheless void, on account of the provisions to which I have referred.

In the case before us, the defendants agreed to pay the plaintiff a certain commission for obtaining a charter from the United States government for their steamsMp. We are not to presume necessarily, because this was a charter to be obtained from the government, that any corruption or improper influences were to be resorted to, or that the undertaking was injuriously to affect or subvert the public interest. We are not to presume anything wrong in a transaction in which the government is concerned, any more than where private individuals are alone concerned. The plaintiff had as good a right to obtam a charter of this kind for any other person, as he would have to obtain one for himself. If the defendants thought it best to employ an agent to procure tMs charter, who, perhaps, possessed better tact at, and had more time to devote to this business, they had a perfect right to do so, and by doing so were not doing anytMng necessarily detrimental to the public interests, the contract then is valid.

III. How far are the defendants made liable by it? They promised to pay the plaintiff five per cent on amount of charter, say $200 per diem, more or less, so long as the vessel shall remain in government service. The charter was obtained by the agency of the plaintiff, and the government paid defendants $200 per diem until. March 25, 1863, when it reduced the per diem compensation to $120. The defendants admitted that they were bound to pay the commissions to March 25, 1863, but as the compensation was reduced on that day, they maintain the charter which the plaintiff obtained ceased to exist, and from that day he is entitled to no commission. But the precise instrument on which the charter was written, was retained between the defendants and the government. Nothing was altered; not a single provision struck out or modified; the only change related to the compensation, and that was merely indorsed upon the instrument. This instrument was dated the 15th of April, 1862 ; it was of considerable length; contained numerous provisions; is very specific; is very carefully prepared, and is, as I have said, retained by the defendants and the government, as the compact by which they are to be governed during the continued employment of the vessel by the latter. They both, however, seem to think that circumstances render it proper that the compensation should be reduced, and they signify this opinion by an indorsement on this same instrument. In every other respect, not in the least degree, is a single sentence or word altered, and, in the words of the agreement,. “ the vessel remained in government service.” The indorsement, in my opinion, has not affected the identity of the instrument or the transaction; and the defendants are liable for a commission of five -per cent on $200 per diem to March 25, 1863, and on $120 per diem from that date to December 1, 1863.

The judgment should be reversed.

New trial ordered, costs to abide event.