Kerr v. American Pneumatic Service Co.

Barker, J. It is to be inferred from the declaration and the contract referred to in the first and second counts that the business of the company is concerned with the carrying of mail matter by pneumatic tube service. If so, its business must involve the procuring of franchises from governmental bodies general or local allowing the laying, maintaining and operating of such tubes, as well as contracts from the proper authorities for the carrying of mail matter by means of the tube service. In both of these classes of the company’s business it is possible for it or its agents to attempt to use corrupt practices to gain its ends. In neither class is the use of any corrupt practice a necessary incident of such a business as the contract contemplates. In the defendant’s dealing with “government and franchise matters,” and in the procuring of contracts for carrying the mails, and in the adjustment of claims and demands arising from the execution of such contracts, the defendant being a corporation must act by an agent of some kind. In each and all of such matters there is occasion for an agent to render to the corporation services which in every possible aspect would be legitimate, and not open to criticism as in any way contrary to public policy or good morals, or to upright and fair dealing. Oscanyan v. Arms Co. 103 U. S. 261, and cases cited. If the contract contemplates only such services it is not illegal merely because an agent employed under it might misconduct himself and use corrupt methods. Barry v. Capen, 151 Mass. 99, 100. Upon this demurrer it cannot be ruled as matter of law that the contract calls for other than legitimate work on the part of the plaintiff. See Fuller v. Dame, 18 Pick. 472 ; Frost v. Belmont, 6 Allen, 152; Barry v. Capen, ubi supra ; Oscanyan v. Arms Co. 103 U. S. 261, and cases cited. If such work only is contemplated, the provision for an increase of salary when the government mail contracts reach a certain amount cannot be said to be one which has a tendency to induce the use [30] of corrupt or improper acts on the part of the agent. An agent who gives all his time to the business of a principal fairly may be given a compensation increasing with the volume of the business. The third count of the declaration does not refer in terms to the written contract. As there is no allegation that the three counts are for one cause of action only, the third count is good in any event. Of course, if upon a trial it appears that the real purpose of the company was to procure and of the plaintiff to render services in any way looking to improper influence or practices for their success, the trial court will know how to deal with the case in the manner demanded by the principles stated by Chief Justice Shaw in Fuller v. Dame and by Mr. Justice Chapman in Frost v. Belmont. Demurrer overruled ; defendant to have leave to answer over.