Hunter v. Nolf , 71 Pa. 282 ( 1872 )

The opinion of the court was delivered, by

Sharswood, J.

It is an undisputed fact that Hunter and Nolf, both being applicants for the office of assistant assessor of the United States, it was agreed between them that if Nolf should withdraw and Hunter receive the appointment, they would jointly perform the duties, and equally divide the receipts. It is undisputed law that such a contract is illegal as against public policy, and cannot be enforced. So the learned judge below instructed the jury, but he left it to them to decide as a question of fact whether a new contract was not made after Hunter received the appointment, and that if so Nolf could recover. If there was a new contract it was certainly precisely the same in its terms as that made before the appointment. Nolf himself was examined as a witness, and throughout his testimony insisted on the original contract as that upon which he claimed. “ We had,” said he, “ a regular contract.” “Our regular contract was this: he offered me, if I would help to do the regular business, he would give me half; this was spoken of before and after he had the appointment.” Does it in the least degree shake this testimony that Nolf testified “Joseph Hunter in the month of October 1866 employed me to make assessments,” or that Captain Stoltzenbach testified that Hunter told him “ he had employed Nolf to assist him in making assessments.” Even if there had been an express contract on entirely different terms than those agreed upon before, it ought to be viewed with a considerable degree of suspicion as an attempt to evade a sound and salutary rule of public policy — but here there is no pretence of any other or different contract. The payments made under it, as it clearly appears, were in accordance with its terms — not a quantum meruit, but one-half the receipts. Nolf testifies: “ For October I got $15. Hunter said it was one-half of what he received for that month ; he gave me $30 for November, and said it was one-half of that month; for December he offered $30, and said it was one-half for that month.” How can it be pretended, after such testimony by the party himself, that there was any evidence of a new and different contract ? A mere confirmation of the old one could not certainly cure the vice which was inherent in it. It would practically annul the principle so to hold. We think, therefore, that there was error in the submission of the question to the jury whether there was a new contract after Hunter’s appointment, because there was no evidence of it, not even a scintilla, much less such as would justify a jury in finding for the plaintiff.

Judgment reversed, and venire facias de novo awarded.