Newkirk v. Cone

Skinner, J. This was an action of assumpsit. The plaintiff’s declaration is in inddbitafacs assumpsit for work, labor, journeys, moneys expended and professional services rendered for the defendant, as an attorney at law. The defendant pleaded the general issue and special pleas of set-off, and setting irp a special written contract, under which they allege the* services, and so forth, were performed. The defendant traversed the plea of set-off, and to the pleas setting up the written contract, replied, first, that the services were not performed under the written contract; and second, that the written contract was canceled and rescinded prior to the performance of the services ; and issues to the country were formed upon these pleadings. The cause was tried by a jury, a verdict returned for the» plaintiff* for $18,250, and the court, refusing a new trial, rendered judgment thereon. The assignments of error are grounded upon the assumption that the contract proved "is void for maintenance and champerty, and that the court should have granted a new trial, because the verdict was against the evidence, and for errors committed by the court during the progress of the trial. We will, therefore, proceed to examine whether these assumptions are well founded. "Without entering upon a recital of the evidence, we are satisfied that the jury were justified from it, in finding that the written contract set up in the plea was canceled by the act of the parties, and that the services upon which the verdict is based were not performed under that contract. The jury were justified, from the evidence, in finding that the services were rendered upon an agreement between the parties ; that the plaintiff should investigate the public records of titles to real estate in Cook county, and determine, in cases of conflicting titles, which was the better title; that he should purchase such better titles, where practicable, in the name of the defendant, and prosecute suits for the establishment of the titles so purchased; that the defendant should furnish money to make purchases and meet cash outlay; that, if unsuccessful, the defendant should lose his money, and the plaintiff his time and services; that, in the event of success, the defendant should pay the plaintiff liberally for his services; and that plaintiff by his examinations, did find that certain persons owned a tract of land in Cook county, and which was claimed adversely by others, worth from $100,000 to $250,000, and purchased the same, for a small sum, in the name of the defendant, and which property the defendant held and claimed in fee, under the title so purchased. By the common law, delivery of possession was essential to the conveyance of land, and without it, a fee estate could not pass. And by the common law and ancient statutes in aid thereof, the sale and purchase of titles, where the vendor was not in possession; and of doubtful and disputed titles, with the view of carrying on suits for the maintaining of them, whether the vendor was in or out of possession, or whether the title was good or bad, were prohibited under severe penalties. So, also, the maintaining and carrying on of suits upon agreements to have a part of the land, or right to be recovered, or anything produced therefrom, were unlawful, and punished as offenses. Bacon’s Abr., title “Maintenance” A. and D.; 3 Thomas’ Coke, Book 3, Chap. 12; 1 Hawkins’ PL, Book 1, Chap. 27; 1 Eussell on Crimes, Book 2, Chap. 20. The statute of 1 Rich. II., Chap 9, reciting: “ That many persons, having true title to lands, were wrongfully delayed, by means that the defendants did make gifts and feoffments of then’ lands in debate, and of their goods, to great men, against whom the pursuants durst not make pursuit, and also that many persons used to disseize others, and to make feoffments to great men to have maintenance,” and so forth, provides that all such grants shall be void, and imposes penalties for making them. See Bacon’s Abr., title as above. It is apparent, from the preamble, that the object of the statute was to protect the rights of the weak against the power of wealth and nobility, and to prevent the use of such power for purposes of annoyance and persecution. And the history of that period teaches that the British lords and nobles were accustomed to buy up disputed titles, and to use them in litigation, with the view, by their great power, to awe into submission and subdue those with whom they were at variance. And the entire doctrine of maintenance, for reasons, doubtless, then existing, was carried so far as to render it hazardous for any one, not professionally, to, in any manner, aid or encourage another in the legal vindication of a right. But, in more modern times, the doctrine of maintenance has, in England, become essentially modified, and adapted to a better civilization ; and in the United States, generally, it is regulated by statute, and, where not so regulated, is received with material modifications. In the case of Master v. Miller, 4 Tenn. R. 340, the court says: “ It is curious, and not altogether useless, to see how the doctrine of maintenance has, from time to time, been received at Westminster Hall. At one time, not only he who laid out money to assist another in his cause, but he that, by his friendship or interest, saved him an expense that he otherwise would be put to, was held guilty of maintenance. Hay, if he officiously gave evidence, it was maintenance ; so he must have had a subpoena or suppressed the truth. That such a doctrine, repugnant to every feeling of the human heart, should be laid aside, must be expected.” Undoubtedly, the common law and British statutes, in aid thereof, as they stood at the period of the first settlement of the American colonies by British subjects—the year 1607— and adapted to our institutions and condition, are the law of this state, so far as they remain unrepealed by statute. But our'statutes have materially changed, if they have not wdiolly superseded, that law, in regard to maintenance and champerty Our statutes dispense with livery of seizin in the conveyance of land, and enable any one, claiming right to land, although out of possession, and although the same be in the adverse possession of another, to convey such interest as he may have therein, and give the purchaser the right to sue for the recovery of the land. Statutes 1856, pp. 153, 154. If the law sanctions the sale by the party out of possesion, of land held under adverse title by another, it necessarily sanctions the purchase of disputed titles, which require the aid of the law to make them available; and as necessarily sanctions the usual means of ascertaining their existence, and of judging of their validity, by examination of the public records of land titles, and also the prosecution of actions in the courts, for the recovery of the land. It cannot be said that the law authorizes a thing to be done, and, at the same time, denies the ordinary means of doing it. So far as the contract proved relates to the prosecution of suits for the defendant, in the legal establishment of the rights intended to be purchased, and contemplates a participation in the advantage or profit to accrue from the purchase of the titles, and maintaining them at law, whether treated as a contingent fee for professional services, or as a part of the general undertaking to purchase, prosecute suits, and share in the profits, we cannot discover that it is tainted with crime, or against the provisions of any statute, or that it contravenes any principle of public policy under our land. As a general rule, all contracts between individuals, not inhibited by law, and not in contravention of public policy, arising out of the law, are valid. We are aware of no law orx public policy in this state which would deprive a person, claiming a right, from contracting to pay for legal services, in vindicating it, a stipulated portion of the thing, or of the value of the thing, when recovered, dependent solely upon such recovery, instead of paying, or contracting to pay, absolutely, a sum certain. The suitor may be unable to pay in advance/ and without credit, or he may deem such an arrangement most prudent and best calculated to insure vigilance on the part of his counsel; and if he has a cause of action, the courts are and should be open for its legal prosecution. And our statute, defining and providing for punishment of maintenance, under which general name, according to the' elementary books, champerty is embraced, seems to have abolished the common law offense, with its divisions and distinctions, and to have, in its stead, created a statutory offense, under the general name maintenance. 4 Blackwellfe Oom. 135, 136. What shall constitute embracery, barratry and mamtena/nce, respectively, are defined, and punishments provided for each. Gan it, then, be said that a distinct offense, called champerty, and which, at common law, was included in the more comprehensive name maintenance, exists out of the statute, and by force of the common law or ancient British statutes. Under our statute, the offense of mamtena/nce consists in a person officiously intermeddling in a suit which in nowise belongs to or concerns him, by maintaining or assisting either party with money, or otherwise, to prosecute or defend such suit, with a view to promote litigation: and by no legitimate construction, can it extend to many acts deemed maintenance at common law. Statutes 1856, p. 380. We hold the verbal contract proved valid under our law, and, in a mere moral view, we have no authority to consider it for the purposes of this case. Johnson v. Bright, 15 Ill. R. 464; Findon v. Parker, 11 Meeson and Welsby’s R. 675; Call v. Calif, 13 Met. R. 362; Thallheimer v. Brinkerhoof, 3 Cow. R. 623; Spencer v. King, 5 Ohio R. 113; Bayard v. McLane, 3 Harrington’s R. 139; Caldwell v. Shepherd, 6 Monroe’s R. 389 ; Ramsey v. Trent, 10 B. Monroe’s R. 336; White v. Roberts, 4 Dana’s R. 172. The motion for a new trial brought before the court all objections raised upon trial, including those arising upon instructions, and also the question of the sufficiency of the evidence to sustain the verdict; and in considering this motion, we shall dispose of these questions collectively, and without particular reference to the several assignments of error—thirty-four in number, and requiring, for examination in an opinion, an amount of time and a length wholly inadmissible, in view of the duties imposed upon this court. The evidence is sufficient to justify the verdict, and we can discover, upon the whole case, no error in law, in legal effect, prejudicial to the defendant, and which, upon this record, entitles him to a reversal of the judgment. Evidently, substantial justice has been done between these parties, and the defendant has no just cause of complaint. And in such case, this court will not reverse a judgment, even if errors have been committed by the court below upon the trial, in the admission or exclusion of evidence, or in the giving or refusing instructions. Gillett v. Sweat, 1 Gilm. R. 475; Greenup v. Stoker, 3 ibid. 202; Smith v. Shultz, 1 Scam. R. 491; Leigh v. Hodges, 1 ibid. 15. Any other rule in this court would often prevent the administration of justice, render trial by jury a farce, and a verdict a misfortune to the party in whose favor it is returned. Mor will this court reverse a judgment for refusal of the court b.elow to give instructions, unless they correctly state the law, and the facts appearing require the application of the principles contained in them, to enable the jury to arrive at a legal general finding. 1 Scam. B. 407; ibicl. 47; 2 ibid. 368; 3 ibid. 218 ; 4 ibid. 58; 1 Gilm. B. 10; ibid. 556 ; 2 ibid. 285 ; 4 ibid. 125 ; 14 Ill. R. 472. Otherwise, no injury, in contemplation of law, can accrue to the pjpty complaining of the error. Ij/is the duty of counsel to demand only such instructions as'nre applicable to the case before the jury, and as are calculated to enable the jury to arrive, upon consideration of the facts, and the law applicable to them, to a correct general finding. Beyond this object and effect they are a snare, tend to the perversion of jury trial, and should be refused by the court. Judgment affirmed.