Ferrell v. Elkins

Hart, J. (after stating the facts). As above stated, the ground upon-which the demurrer to the amended complaint was sustained by the court is that the contract sued on is contrary to public policy, and therefore void. This court has held that a contract to procure the passage of an act of the Legislature by lobby services, or by using personal influence with the members, is void as against public policy. Buchanan v. Farmer, 122 Ark. 562, and Miller County H. & B. Dist. v. Cook, 134 Ark. 328. The Supreme Court of the United States has said that there is no real difference, in principle, between agreements to procure favors from legislative bodies and agreements to procure favors in the shape of ..'contracts from tlie heads of departments of the United States G-overnment. The court further said that the introduction of improper elements to control the action ol both is the direct and inevitable result of all such ar- ' rangements. Tool Co. v. Norris, 2 Wall. (U. S.) 45. See also Cole v. Brown-Hurley Hardware Co. (Iowa), 18 L. R. A. (N. S.) 1161, and Kansas City Paper House v. Foley Railway Printing Co. (Kan.), 39 L. R. A. (N. S.) 747. In the case from Iowa, just cited, it was said .that no court should hesitate to declare void any agreement or contract to corrupt or improperly influence the official conduct of any public servant, but that it is an equally sound principle which leads courts to declare that, before applying such remedy, and permitting one who has received a valuable consideration for a promise, fair upon its face, to escape its performance by pleading the invalidity of his own agreement, such fatal defect therein must be so clear as to be free from doubt. The question before the court here is whether or not the language of the complaint'brings the case within the ban of the principles of law above announced. It will be remembered that the court sustained a demurre],’ to the amended complaint, and the plaintiff declined to plead further. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside -on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Cox v. Smith, 93 Ark. 371. Now if, under the allegationá of the complaint, the contract in question is susceptible of being carried out in a lawful way without conflicting in any manner with the common intent of the parties at the time the contract was entered into, there is no ground on which it can be held to be invalid. It is not enough, to defeat it that it is susceptible of an illegal use, or that one of the parties to it may have contemplated and designed such illegal use, if the other had a right to suppose, under the circumstances, that the contract was to have effect according to its apparent and lawful construction. Gregory v. Wendall, 40 Mich. 432. In the instant case, according to the allegations of the complaint, the plaintiff and the defendants had entered into a partnership for the purpose of constructing improved roads under contracts with road improve- . ment districts organized under the statutes of the State. The plaintiff had a third interest in the partnership, but had personally collected data and made preliminary surveys, including a cross-sectioning of a public road whicli was to be constructed in Lawrence County by certain improvement district commissioners. The surveys made and the data collected by the plaintiff were of much value in bidding on said contract. It was a perfectly legal act for the plaintiff to sell the information he liad thus cob leeted to the defendants, to be used by them in bidding upon the contract. Of course, the plaintiff could not sell his personal influence with the commissioners to the defendants. Such an agreement on his part -would be against public policy, within the principles above announced, and would make the agreement void. • . On the other hand, the sale of the data and information collected by him during the existence of the partnership, as' above recited, -would .not be contrary to public policy, and would afford a good and valuable consideration for a valid agreement between the defendants in relation thereto. Tested by the rule'announced, it cannot be said that the contract sued on is invalid. The question is one of fact to be decided on by a court, after hearing the evidence of what was done and said by the parties to the agreement in question. It is sufficient here to say-that the complaint and exhibit thereto do not, on their face, necessarily allege illegal dealings between the parties. Hence the court erred in sustaining the demurrer to the amended complaint, and for that error the judgment must be reversed, and the cause will he remanded, with directions to o'verrule the demurrer, and for further proceedings according to law.