Goodier v. Hamilton

I am unable to find in the contract which the trial court found that the parties entered into, any of the sinister elements detected by the majority. Surely, a man may ask his friend for advice concerning the proposed employment of a professional man, and the gratuitous giving of such advice in response to a request is entirely proper. If the friend whose opinion is sought is asked to devote some time and effort to acquiring information which may render the advice to be given of greater value, why cannot he receive compensation for the time expended?

Appellant did not stir up litigation. Clearly, it appears from the record that the original proposition came from respondent, who already had in mind the proceeding which he desired to institute. While it is true that the consideration offered by respondent was very considerable, he fixed the amount himself, and cannot now complain if the court takes him at his word. If an attorney could handle the proceedings upon a contingent basis, I see no reason why appellant's compensation could not also be contingent upon the successful issue. As stated in the majority opinion, there is not the slightest intimation that any of the parties concerned were to achieve the desired ends by improper means. Neither was it contemplated that appellant would render any service which he was not, under the law, competent to render.

A contract will not be held void as against public policy if by any reasonable construction it can be upheld, and unless it clearly appears that the contract is prejudicial to the public interest. Electrova Co. v. Spring Garden Ins. Co.,156 N.C. 232, 72 S.E. 306, 35 L.R.A. (N.S.) 1216; Virginia Bridge IronCo. v. Crafts, 2 Ga. App. 126, 58 S.E. 322; State ex rel. Huntv. Okanogan County, 153 Wash. 399, 280 P. 31, 67 A.L.R. 668;Baumhoff v. Oklahoma City, etc., 14 Okla. 127, 77 P. 40.

Appellant made no agreement to share the expenses of the litigation, nor was any portion of the proceeds thereof to go to him. The elements of champerty, maintenance and barratry are therefore entirely wanting. To me, the inference which the majority hold must necessarily be drawn from the agreement, to the effect that the attorney recommended by appellant would be so recommended by appellant because of some supposed improper influence which that attorney could bring to bear, nowise follows from the facts disclosed by this record.

For these reasons, I dissent from the conclusions reached by the majority.

MAIN, J., concurs with BEALS, C.J.