STEGER v. HUME

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Docket Number

No. 1277.

Attorney(S)

P.C. Thurmond, for appellant. — Appellant and Thos. P. Steger, as attorneys for the unknown heirs in the matter of the application of Sarah A. Dove and her coapplicants for partition of the residue of Bean's estate in the District Court of Grayson County, had the right to appeal for said unknown heirs from the judgment of said court against said heirs, and on said appeal to assail by proper assignment the ruling of the court fixing their allowance for their services as such attorneys; and the abandonment of said appeal was a good and sufficient consideration for appellee's promise to pay them $1000. Russell's Heirs v. Randolph, 11 Tex. 460; Hunter v. Lanius, 82 Tex. 677 [ 82 Tex. 677]; Stringfellow v. Early, 40 S.W. Rep., 871. The contract set out in appellant's petition does not conflict with nor violate any provision of our State laws or of our Constitution, nor does it conflict with or violate any rule of the common law; hence it is valid. Beach, Mod. Law of Contracts, sec. 1500 and notes. The said contract tried by its immediate tendency is not vicious, nor does it involve anything inconsistent with the impartial course of justice, nor does it tend to pervert same, but is rather one of fair compromise of conflicting claims and is favored by the courts. Stringfellow v. Early, 40 S.W. Rep., 871; Gibbons v. Gibbons, 54 S.W. Rep., 710. The said contract does not tend to injure the public, nor is it against the public good, and courts do not declare contracts void on grounds of public policy except where the case is free from doubt and where the injury to the public interests clearly appears. Singer Sew. Mach. Co. v. Rios, 6 Texas Ct. Rep., 293; Beach, Mod. Law of Contracts, sec. 1498. Inasmuch as the verdict of the jury in the matter of the application of Sarah A. Dove et al., found said Sarah A. Dove and her coapplicants to be the true and only heirs of T.C. Bean, deceased, and must be presumed to be true and the judgment of the court thereon correct, the contract of the Stegers made with appellee after the judgment was rendered whereby they abandoned said appeal did not injuriously affect any unknown heirs of said Bean because (1) the said verdict and judgment established the fact that there was no such unknown heirs; and (2) if, after the rendition of said judgment, it could be still contended there were such heirs, yet such heirs could still, after the making of said agreement, resort to such proceedings as they thought fit to set the said judgment aside. Walton Walton and A.S. Phelps, for appellee. — Any agreement which in itself is, or which contemplates or involves or requires or is calculated to induce, a dereliction or laxity in the discharge or performance of a public or private duty of another, is void. Greenhood on Public Policy of Contracts, rule 266, pp. 306-308; Drake v. Patterson, 5 Hun, 558 (1875); Merritt v. Lambert, 10 Paige, 352; Merchants Bank v. State Bank, 10 Wall., 604-650; Beer v. Landman, 88 Tex. 450; Ridenbaugh v. Young, 46 S.W. Rep., 959, and cases cited on page 961; 15 Am. and Eng. Enc. of Law, 2 ed., 932 and authorities; 934, subdiv. 6; 936, par. 3; 943, par. 5; 945, subdiv. 7; 977, subdiv. 12. Any contract the result of which is for the purpose of stifling, hindering, or preventing justice, is against public policy and void. Ridenbaugh v. Young, 46 S.W. Rep., 959; 3 Am. and Eng. Enc. of Law, 879-881; Davis v. Sittig, 65 Tex. 501, and cases cited on 507; Woodstock Iron Co. v. Rushmann and D. Extension Co., 129 U.S. 643; Donley v. Tindale, 32 Tex. 53; Viser v. Berliand, 14 Ark. 267; Kilborn v. Field, 78 Pa. St., 194; Pollock on Contracts, p. 286; Tool Co. v. Norris, 2 Wall., 45; Greenhood on Public Policy, p. 5; Mecklenberg v. Hollis, 29 Ind. 139; Phillip v. Thorp, 10 Ore., 494; Lamport v. Beeman, 34 Barb., 229 (1863); Smolley v. Green, 52 Iowa 24 (1879); Trist v. Child, 21 Wall., 441; Maguire v. Corwin, 101 U.S. 108; Oscangon v. Arms Co., 103 U.S. 261; Engleman v. Deal, 36. S.W. Rep., 652.

Judges

GAINES, CHIEF JUSTICE.

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ED. D. STEGER v. J.L. HUME.

Public Policy — Attorney's Contract With Adverse Party.

Attorneys appointed to represent unknown heirs in the settlement of an estate, being about to appeal, for such heirs, from an order allowing them a fee, which they contended was inadequate, for their services as such attorneys, agreed not to prosecute such appeal, upon a promise, by one adversely interested, to pay them the difference between the amount allowed and that they sought to recover by the appeal. Held, that there could be no recovery on such promise because contrary to public policy; that, though the only object sought by them in appealing was to secure the amount of fee in question, the effect of the appeal was to keep the settlement of the estate open, with further chances for unknown heirs to appear and assert rights in the estate, and they had no right to abandon it for pay from a party adversely interested. (P. 332.)

GAINES, CHIEF JUSTICE.

In response to the first question certified in this case we answer, that in our opinion the contract as alleged in the petition was against public policy and therefore void.

It follows from this conclusion that an answer to the second question is unnecessary.

ED. D. STEGER v. J.L. HUME.

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