Chesebrough v. Conover — 50 N.Y. St. Rep. 463

Majority

p. 463

Julius F. Chesebrough, Resp't, v. Daniel D. Conover, App'lt.

(Supreme Court, General Term, First Department,

Filed December 16, 1892.)

Headnote

1. Contract—Validity—Public policy.

In an action for services under a contract to prepare papers, acts and resolutions to be presented to the legislature, to see certain parties, to go to Albany and use arguments in relation to certain legislation, the question ás to whether such contract is void as against public poney as calling for improper solicitation of members of the legislature is one proper to be determined by the jury.

2. Evidence—Contradiction of witness.

Where the defendant, on cross-examination, has stated that he had characterized plaintiff’s claim in conversations as a blackmailing scheme, the plaintiff has a right to show that this did not correctly represent defendant’s attitude when the claim was spoken of and its settlement urged.

3. Same.

Where, upon cross-examination of a party, portions of his testimony on a former trial are brought out, which, standing alone, would give an erroneous impression of the nature of his entire former testimony, he may properly be allowed to give the remainder of such testimony.

4. Services—Time op payment.

Where the right to payment for services depends on performance of the contract, and not upon a demand, the obligation to pay is complete when the contract is performed.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

Thomas K Stewart (A. G. Fox, of counsel), for app’lt;

Galvin J). • Van Name (L. Sanders, of counsel), for resp’t.

This action was brought to recover for personal services rendered under an alleged contract between the plaintiff and the defendant. The services of the plaintiff were to assist the defendant to obtain the right, privilege, franchise and authority for building the extension of a railroad through Fortyseoond street; to draw papers, acts, and resolutions to be presented to parties, to the legislature, common council, etc. The answer denies the making of the contract in suit, and denies any knowledge sufficient to form a belief as to the rendition of any services by the plaintiff after the alleged making of the contract, and denies positively that they were rendered at the defendant’s request. The plaintiff having given evidence tending to prove the alleged contract, and the services rendered thereunder, and the defendant having given evidence to the contrary, the questions raised were duly submitted to the jury who found a verdict in favor of the plaintiff; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

The first proposition of the appellant upon the present appeal is that the plaintiff cannot maintain this action, upon the ground

p. 464

that the contract upon which it is founded was void as against public policy, the services contemplated by the contract consisting of personal solicitations, addressed to members of the legislature, for the purpose of inducing them to further the passage of bills which he claims to have prepared, and in part of efforts to secure the withdrawal or amendment of a bill which was deemed prejudicial to the defendant’s interests. While we think the proof was capable of a construction which might lead to the conclusion that the contract was of this character, we cannot say that it would not bear another interpretation. If it could be reasonably construed as contemplating no action upon the part of the plaintiff except such as was honest and proper, it was for the jury to say what inference ought to be drawn; and we do not think that the defendant was entitled to anything more than to have the question fairly submitted to the jury. It was thus submitted bj the propositions which the court charged at the request of the defendant’s counsel, which were to the effect that even if the jury find as a fact that there was a contract between the plaintiff and defendant, but that it was a part of such contract that the plaintiff, if requested, would go to Albany and see some member of the railway committee when one of the bills testified to was before such committee, and talk to him privately, to further said bill, so as to have the "bill reported and passed along, or so that the bill could be passed, and that the plaintiff did talk with one or more members of such committee privately for such purpose, then the defendant is entitled to a verdict.

The court also charged, at the request of the defendant, that even if the jurjr find as a fact that there was a contract between the plaintiff and defendant, but that it was a part of such contract that the plaintiff should, if requested, have personal and private interviews with members of the legislature, having in view, as one of their objects, the furthering of any bill - pending in the legislature, or a committee thereof, so that the same could be reported by such committee and passed, then the jury need consider no other question, but must render a verdict for the defend-' ant. These instructions were sufficiently broad and accurate, and certainly were as favorable to the defendant as could possibly be claimed; and, the jury having refused to find that the contract was of such a nature, their verdict, we think, must be deemed conclusive upon that question.

It is further urged that the court erred in allowing the plaintiff to impeach the defendant by contradicting as to what he claims to be collateral matter brought out on cross-examination. The plaintiff had a right to show by the defendant as to how he treated the plaintiff’s claim in conversations in respect to it; and, he having testified that he characterized this claim in conversations in respect to it as a blackmailing claim, it was proper for the plaintiff to show by competent evidence that this did not correctly represent the attitude which the defendant assumed when this claim was spoken of and its settlement urged.

It is also claimed that the court erred in allowing the plaintiff to prove his own declarations upon the former trial; but it will be

p. 465

seen, when the record is examined, that no error was committed in this respect. The defendant’s counsel had cross-examined him as to his testimony upon the former trial, asking whether he did not testify thus and so, which presented only a part of the testimony which he gave, and would produce an erroneous impression as to what the nature of the whole of his testimony was, had it been allowed to stand alone; and, thereupon, the plaintiff’s counsel asked him whether he did not testify to other facts which very materially qualified those to 'which his attention had been called by the defendant’s counsel. It seems to be a familiar principle that a part of a declaration of the plaintiff cannot be offered in evidence by a defendant, and the plaintiff be precluded from giving the remainder.

It is also claimed that there was error in instructing the jury to assess the damages as of October, 1886. We see no error in this. The right of payment did not depend upon demand, as seems to be inferred by the defendant’s counsel. It depended upon the performance of the contract, and, when that was done, the obligation upon the part of the defendant to pay was complete. Then the cause of action arose, and then the plaintiff was entitled to the stock and bonds, and to recover their value as of that time. There are some other exceptions which have been adverted to upon the part of the appellant, but they do not seem to need special mention.

The judgment and order should be affirmed, with costs.

O’Brien, J., concurs.