Harris v. Roof's Executors

By the Court, Hand, J. I think the referee took a view of the testimony, somewhat favorable to the plaintiff upon the question of fact. But perhaps there is not' such a preponderance, as to authorize us to interfere on that ground. The defendant objects, that the witnesses were asked for, and gave their opinions as to the value of the plaintiff’s services, in attending the legislature. On questions of science, skill and trade, persons of skill in those branches, are sometimes allowed to give their opinions. And so as to the value “of property. The foundation of the evidence in all these cases, is knowledge; without knowledge the witness is incompetent. In this case, the question to each witness was.-: •“ From what you know of Mr. Harris’ services in prosecuting that claim that year, what were they worth ?’’ If this question is admissible at all, I do not think it was shown that the witnesses had sufficient knowledge, either of these services, or the value of such services, to answer the question. [492] Matchin testified that he had some experience in that kind of' business, for several years. But he' did not pretend that he-had ever heard of any compensation being made for such services, or any services of that nature. dSTor even that he had ever heard any estimate put upon them. He was to have one-tenth, if successful, otherwise nothing. Rose appears a little better prepared to speak upon the subject of value, generally, for he says that in 1846 he was not connected with the house, except in prosecuting claims for others. And again, that his estimates were not made exclusively with reference to the items of services, &.c., but also with reference to what he and others had been paid for similar services. Snow does not appear to have had much experience, nor any knowledge of the price or value of such services, and yet he swears to $300 for 1845, and $200 for each of the succeeding years. True, he appears to have been about there each year, and says that in 1846, he assisted the plaintiff, at his request; and that in 1847, the witness did not have much to do with it. He does not state that he has ever had any other experience, or that he has any knowledge, even by hearsay, of the value of such services. Giving to the plaintiff the greatest latitude in such cases, the testimony was inadmissible. A witness acquainted with some of the facts only, is not qualified to make a general estimate of the value of the whole service. It would not be allowed that one who had a knowledge of a small portion of the services of an attorney in a cause, should give an opinion of the value of his services in the entire suit. The services may be more or less, and so, I presume, it would be in cases of the kind now under consideration. There could be no uniform standard of value in such cases. If the witnesses knew of the performance, by the plaintiff, of any particular acts, and had given an opinion as to the value of those particular services, that would have presented a different question, and one which need not be decided now. But certainly, such knowledge could not qualify him to give an opinion of the value of the services in gross for a season. That was, substantially, passing upon the amount of the plaintiff’s claim, and not stating facts. It was in effect swearing to [493] the amount of damages generally, which is inadmissible, (Paige v. Kelly, 5 Hill, 603. Harger v. Edmonds, 4 Barb. 256. Giles v. O’Toole, Id. 261. Dolittle v. Eddy, 7 Id. 74.) The defendant’s counsel stated his objection in a way impliedly admitting that the witness might give his opinion of the value of those particular services, of which he had personal knowledge. Farther than that, certainly, the witness could not go; and it is evident that this testimony had great influence upon the mind of the referee. But there is another conclusive objection to the allowance of the sum of $600 forservices at Albany. If the plaintiff, like Matchin, was to have a share of what might be obtained by the application, as positively testified by one witness, the agreement was illegal. Champerty is not confined to courts of common law. (Wallis v. Duke of Portland, 3 Ves. 494. Stevens v. Bagwell, 15 Id. 156, n.) And even without such agreement, I think the claim invalid, as against public policy, and prejudicial to sound legislation. In this case, it appears that the claimant against the state was an old man ; for as I understand the evidence the plaintiff married his granddaughter; and sought compensation for a pretended interest in lands, granted at least nearly a century since, if not much earlier. But admittingthe claim was put forth in good faith, there seems to be no proof of performance of any service by the plaintiff during these three sessions of the legislature, except to procure certain papers to be looked up and referred to a committee; a work in which, unless a member or an officer of the house, he could not very properly aid; and appear before such committee, and also talk with the members and the attorney general. Matchin says that in 1846, “ under Harris’ charge, the matter was referred to a committee,” and in 1847, the plaintiff “ went to see members, to get them to aid in voting for the claim,” and he saw him Conversing with them at seven of the principal hotels in Albany; and he believes a report was got up by Mr. Harris’ means.” Every citizen has a right to petition the legislature, and accompany the petition with all necessary documents. And he may employ any person to prepare them. But all petitions go to a committee [494] through the house. (Jeff. Man. § 11.) And counsel too, can be heard on private bills, with leave of the house. But it is the duty of every legislative body, and every member of it, to give all proper and necessary attention to the business before it. It is~to be intended that “the legislature always have truth and justice before their eyes.” (Plowd. 398.) And it certainly would imply a most unjustifiable dereliction of duty to hold that the employment of individuals to visit and importune the members, is necessary to obtain justice. Such practices would have a tendency to prevent free, honorable and correct deliberation and action of this most important branch of sovereignty. Very few cases similar to this, or bearing any analogy thereto, are to be found in our law books ; and it is to be hoped ever will be, for the best of reasons. In England, in some election cases, in which, under their very exceptionable system, the expenses are enormous, it has been held that the candidate, alone, was liable. (Wallis v. Portland, 3 Ves. 494, and cases there cited.) And in some railway cases there, principles have been advanced, which I should regret to see obtain in this country. (Simpson v. Lord Howden, 3 Mylne & Cr. 99 ; S. C. 9 Cl. & Fin. 61; S. C. 5 Rail. & Can. Ca. Howden v. Simpson, 10 Ad. & El. 793. The Vauxhall Br. Co. v. E. of Spencer, Jac. 64. Chit, on Cont. 583.) However the reasoning of the court of king’s bench, of the vice chancellor, and master of the rolls, in these same cases, is highly commendable. (Howden v. Simpson, 10 Ad. & El. 793. Simpson v. Howden, 1 Keen, 583. Vauxhall Br. Co. v. E. of Spencer, 2 Madd. 356.) In this country we have had a few analogous cases. A contract, founded on an agreement to obtain signatures for a pardon, (Hartzfield v. Gurden, 7 Watts. 152 ;) or to procure the passage of an act by the legislature, by using personal influence, &c., (Chippenger v. Hopbaguh, 5 Watts & Serg. 315;) an agreement to pay a sum for withdrawing opposition to the passage of an act touching the interests of a corporation, (Pingry v. Washborne, 1 Aik. 264;) were held void. (And see Platt on Cov. 570 ; Chit, on Cont. 220, 583; Gulick v. Ward et al. 5 Halst. 87; Swayze v. Hull, 3 Id. 54 ; Coppock v. Brown, 4 Mees. & W. 361; Stan [495] ly v. Jones, 7 Bing. 369.) I can not think it good public policy to require our courts to enforce such contracts. It can neither be necessary nor proper for the legislature to be surrounded by swarms of hired retainers of the claimants upon public bounty or justice. To legalize such a system, would, to say the least, be a reflection upon the ability and industry of our legislators. But suppose the- plaintiff entitled to recover on a quantum meruit, what is to be the measure of compensation ? There was no proof showing that counsel were heard, or even that the plaintiff pretended to act as counsel. Counsel could not appear without leave of the house, or a committee. If leave had been granted and the plaintiff had acted as counsel for the testator, a question would have arisen, whether the rule in this state, allowing counsellors at law to sue for their services, wduld apply. (Stevens v. Adams, 23 Wend. 57. Adams v. Stevens, 26 Id. 451.) At common law, barristers could not sue for their services, even in a court of law. It does not appear that the plaintiff was a professional man, or pretended to he an advocate. What then could he do to entitle him to such compensation ? The remuneration of an agent or employee, is not necessarily graduated by the benefit derived from his services. But admitting there was a general retainer in the matter, and that the plaintiff is entitled to recover on a quantum meruit, that does not authorize him to expend money and time uselessly; certainly not unless requested to do so. And here, as we have seen, there was very little, if any thing, that he could do; and it is very clear that he did very little. I think there was error in the admission of evidence ; and that the principal charges allowed by the referee were not the foundation of an action, both on account of the nature and extent of the services. Report set aside.