(Court of General Sessions of Delaware. New money, goods or other thing, being the subject Castle. Sept. 30, 1918.)

(108 A.)

they were stolen is for your determination, [ plaintiffs in the action, an amount equal to because you are the sole judges of the weight and value of the evidence.

1. EXECUTORS AND ADMINISTRATORS 451(1)
-PROBATE AFFIDAVIT OF CLAIM PRODUCED
ON MOTION FOR NONSUIT AFTER CLOSE OF
PLAINTIFF'S CASE NOT TOO LATE.

twenty per cent. of the counsel fee in the case; that the action was successfully prosecuted and that the amount actually paid to counsel (there being two lawyers associated with Mr. Higgins in the case) was thirty thousand dollars, of which Todd was to receive twenty per cent.; that nothing was ever paid to the estate of George W. Todd by the estate of Anthony Higgins.

Plaintiff rested, and counsel for defendants thereupon moved for a nonsuit, for the reason that no probated demand had been made. upon the defendants as required by Rev. Code 1915, § 3376, which provides:

"Before the executor, or administrator, shall The affidavit which under Rev. Code 1915, pay any debt against the deceased, the person § 3376, must be produced before an executor holding the same shall make affidavit that nothmay pay a claim against decedent, and for failing has been paid or delivered towards sature to produce which in an action against exec-isfaction of said debt, except what is mentioned, utor plaintiff shall, on motion, be nonsuited, and that the sum demanded is justly and truly may be produced, on the motion being made, due. * though plaintiff had closed his case.

2. CONTRACTS 129 (3)—OF ATTORNEY WITH LAYMAN TO PROCURE EVIDENCE FOR PART OF CONTINGENT FEE AGAINST PUBLIC POLICY.

* If affidavit, as above required, be not produced in an action against an executor, or administrator, for a debt against the deceased, the plaintiff shall, upon motion, be nonsuited; and if such action shall have been An agreement of attorney to share his con- brought without previously exhibiting to the tingent fees with one not an attorney for look-defendant an affidavit in due form, the plaintiff ing after and procuring evidence is against pub- shall not recover any costs" lic policy.

Action by Thomas W. Johnson, Jr., executor of George W. Todd, deceased, against James Crane Higgins and Daniel W. Corbit, executors of Anthony Higgins, deceased. Directed verdict for defendants.

CONRAD and HEISEL, JJ, sitting. Daniel O. Hastings and Clarence A. Southerland, both of Wilmington, for plaintiff. William S. Hilles and David J. Reinhardt, both of Wilmington, for defendants.

-citing Langrell v. Wright, Adm'r, 2 Boyce, 311, 80 Atl. 235.

Whereupon the required affidavit was pro

duced.

It was objected that, plaintiff having closed his case, the affidavit was produced too late.

CONRAD, J. [1] The court is satisfied that it can be produced at this time. In the case of Beeson's Ex'r v. Beeson's Adm'r, 1 Har. 106, it was held:

"In the progress of the cause and after the plaintiff had closed his case the defendants'

The plaintiff produced a probate which he had
inadvertently neglected to offer while laying his
case before the jury. The defendant insisted it
was too late, but the court received the probate
and refused the nonsuit. A probate is no part
in any stage of the cause it is sufficient."
of the evidence and if produced when demanded

The plaintiff introduced evidence to show that George W. Todd, deceased, in his life-counsel moved a nonsuit for want of a probate. time, was a bondholder of the Diamond State Steel Company; that as such he was interested, along with other bondholders of said company, as one of the plaintiffs, in a claim or contemplated suit of said company against E. B. Smith & Co.; that Anthony Higgins, deceased, in his lifetime, was a lawyer, with offices in the city of Wilmington; that as such, Counsel for defendants then moved for a his professional services were procured by nonsuit on the ground that the contract alTodd, to undertake the prosecution of said leged between Todd and Higgins was null and suit upon a contingent compensation basis of void, being against public policy; that the forty per cent. of any amount that might be line is drawn between the payment of a layrecovered in said suit; that there was an im- man by a lawyer for services in connection mense amount of outside work to be done in with the preparation of a case, of a certain the gathering of evidence, etc., in prepara-sum, and a sum contingent upon the amount tion for the trial; that all of such work was done by Todd, who practically devoted all his time for a long period to such work; that Higgins agreed that Todd, who was not a lawyer, should receive, in addition to the sum to which he would be entitled as one of the

recovered.

Counsel for plaintiff contended that although there would be no implied contract by reason of the services alleged to have been performed, as in an ordinary case, yet an express contract between a layman, who was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

interested as a party to the suit, and the
counsel who represented him and others in
the case, for a certain percentage of the con-
tingent fee of counsel as compensation for
services in procuring evidence, etc., was val-
id, and recovery could be had thereon.

a contract could never be recognized in any court of justice."

are in accord with the same doctrine, and in The courts of Kentucky and of Michigan fact all the courts where the subject has been discussed agree that a contract between an attorney and one not an attorney, to divide

CONRAD, J., delivering the opinion of the contingent fees to be received by an attorney

court:

The plaintiff rests his case upon an alleged contract claimed to have been made by Anthony Higgins, an attorney at law in this county, with one George W. Todd, not an attorney, to pay to the latter a certain percentage of the counsel fees to be received by Higgins, contingent upon the recovery of a verdict in a suit then pending against the firm of E. B. Smith & Co.; the percentage to be paid to Todd being compensation for procuring evidence, examining records and minutes, etc., for use in the above suit.

[2] Defendants' counsel moves for a nonsuit on the ground that the contract, if proved, was null and void, being against public policy.

in a suit, is repugnant to every instinct of propriety and justice, and should be regarded as immoral, illegal and void.

We are clearly of opinion that the contract relied upon in the case at bar is null and void, being against public policy.

The raotion for a nonsuit is granted. Mr. Hastings: If your honors please, the plaintiff declines to accept a nonsuit.

CONRAD, J. Gentlemen of the jury, for the reasons stated in granting the motion for a nonsuit, we instruct you to return a verdict for the defendants.

Verdict for defendants.

(118 Me. 441)

FARRELL v. FARRELL et al.

An old English authority cites the following instances of the application of the doctrine of contracts in contravention of public policy: Marriage brokerage bonds, contracts in restraint of trade, contracts by expectant heirs, or in consideration of illicit cohabita- (Supreme Judicial Court of Maine. Jan. 20. tion, or such contracts as may injuriously affect the administration of public justice.

1920.)

The case at bar is claimed to come under 1. HUSBAND AND WIFE 327-MARRIED WO

the last-named head.

The Supreme Court of Nebraska, in Lang-
don v. Conlin, 67 Neb. 243, 93 N. W. 389, 60
L. R. A. 429, 108 Am. St. Rep. 643, 2 Ann.
Cas. 834, lays down the law very clearly, as

follows:

"A contract between an attorney at law and one who is not such an attorney, by which the latter agrees to procure the employment of the former by third persons for the prosecution of suits in courts of record, and also to assist in looking after and procuring witnesses whose testimony is to be used in the cases, in consideration of a share of the fees which the attorney shall receive for his services, is against public policy, and void."

The Supreme Court of New York, in Lyon v. Hussey, 82 Hun, 15, 31 N. Y. Supp. 281, upholds the same doctrine, as shown by the following extract from the court's opinion:

"It is clear that such a contract is against public policy. The recognition of contracts of this character would be the introduction of all sorts of fraud and deception in proceedings before courts of justice, in order that parties might receive compensation out of the results of their successful manufacture of proofs to be presented to the court, thus holding out a premium upon subornation. The mere statement of the proposition seems to show that such

MAN MAY NOT SUE MALE DEFENDANT FOR
ALIENATION OF AFFECTIONS.

A married woman could not sue her father-
in-law for alienation of her husband's affections;
married women having no right to sue for aliena-
tion of affections, except as such right is given
by Rev. St. c. 66, § 7, and such statute permit-
ting suit against a female defendant only.
2. HUSBAND AND

WIFE 325 STATUTE GRANTING MARRIED WOMAN RIGHT TO SUE FOR ALIENATION OF AFFECTIONS STRICTLY

CONSTRUED.

Rev. St. c. 66, § 7, permitting a married woman to sue for alienation of affections, is in derogation of the common law, and must be strictly construed.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Ruby M. Farrell against Elbridge G. Farrell and another. The court granted a motion by the named defendant to dismiss as to him, and the plaintiff brings exceptions. Exceptions overruled.

Argued before SPEAR, HANSON, PHILBROOK, MORRILL, and DEASY, JJ.

Joseph E. Hall, of Caribou, and Shaw & Thornton, of Houlton, for plaintiff.

O. L. Keyes, of Caribou, and Pattangall & Locke, of Augusta, for defendants.

(108 A.)

For the purpose of proving the contract the plaintiff produced certain correspondence between the parties, the material parts of which are hereinafter set forth.

PHILBROOK, J. This is an action fully performed the contract, but that the debrought by a married woman against the fendant has failed to pay the commission as father and mother of her husband, alleging agreed. alienation of the affections of the husband. The father presented a motion to dismiss as to him, on the ground that neither under authority of common law nor statute could such an action by a married woman be maintained against a male defendant. The motion was granted, and exceptions were allowed to the plaintiff.

[1, 2] The ruling was correct. R. S. c. 66, 7. Prior to the enactment of this statute a married woman could not maintain such an action, and it is only to the extent of enlarged powers and rights given by this statute that she may now bring her action against a female defendant. The statute, being in derogation of the common law, must be strictly construed.

Exceptions overruled.

(118 Me. 449)

FURBISH v. CHAPMAN. (Supreme Judicial Court of Maine. 1920.)

[1] Testimony was also introduced showing that the plaintiff procured and produced to the principal, customers willing and prepared to purchase and pay for the stumpage at $13 per thousand. This would have entitled the plaintiff to the commission, if the contract were proved as alleged. Garcelon v. Tibbetts, 84 Me. 148, 24 Atl. 797; Smith v. Lawrence, 98 Me. 94, 56 Atl. 455; Hartford v. McGillicuddy, 103 Me. 229, 68 Atl. 860, 16 L. R. A. (N. S.) 431, 12 Ann. Cas. 1083.

But the evidence does not show that the contract between the parties was as the plaintiff claims.

The contract was evidenced by letters the essential parts of which are as follows:

Chapman to Furbish, July 15, 1918: "I am quite willing to give you 5 per cent. broker commission for selling the property for anything above $125,000; also 5 per cent. on anything Jan. 27, above $12.50 for all stumpage on the soft wood sawed alive. * ***99

1. BROKERS 54-ENTITLED TO COMPENSATION FOR FURNISHING CUSTOMER.

Where the owner of timber agreed to pay a broker a commission for selling stumpage at a certain minimum price, the broker became entitled to compensation by procuring and producing to the principal customers willing and prepared to purchase and pay for the stumpage an amount in excess of the minimum price. 2. BROKERS 40-EVIDENCE INSUFFICIENT

should not care to work the proposition on Furbish to Chapman, July 17, 1918: "I such a basis. I would want you to state that, if I sold the property for $125,000 or more or the stumpage for $12.50 per cord or more, I am to receive a broker's commission on the sale of 5 per cent. *** The way you have worded the broker's commission I should receive a 5 per cent. commission only on the amount that I sell the property for over and above the $125,000, or over and above the $12.50 stumpage, and it would not pay me to bother with the proposition on such terms. * * As soon as you Correspondence between owner of stumpage and broker, who sold the stumpage, held not to mission on the sale, I will have the parties go assure me that I am to receive 5 per cent. comshow a meeting of the minds on any proposi-on and cruise the land and try to close a deal tion to pay a certain commission.

TO SHOW MEETING OF MINDS ON CONTRACT.

with some one of them."

Chapman to Furbish, July 23, 1918: "I did Exceptions from Supreme Judicial Court, not realize that my letter read as it did, for I Franklin County, at Law.

Action by Harry A. Furbish against William R. Chapman. The presiding justice directed a nonsuit, and the plaintiff brings exceptions. Exceptions overruled.

Argued before SPEAR, HANSON, PHILBROOK, MORRILL, WILSON, and DEASY, JJ.

Butler & Butler, of Skowhegan, and Frank W. Butler, of Farmington, for plaintiff. Pattangall & Locke, of Augusta, and H. H. Hastings, of Bethel, for defendant.

DEASY, J. This is an action to recover damages for alleged breach of contract. The plaintiff claims that the defendant agreed to pay him a commission of 5 per cent. for selling certain stumpage at a minimum price of $12.50 per thousand, that on his own part he

surely meant to give you 5 per cent. on the sale of all my pine timber and the land on which it I stands, if sold for $125,000 or upwards. would prefer to sell right out in lump sum, rather than bother to sell it by the thousand. *

[2] The letters prior to July 23d do not show a meeting of minds on any proposition. The letter of July 23d gives authority to sell the land for $125,000 or upwards and a promise to pay a commission of 5 per cent. on the sale. No claim is made that the plaintiff sold the land. But the letter, even when read in the light of the entire correspondence, does not, in the judgment of the court, prove a contract to pay a commission for sale of stumpage.

The presiding justice directed a nonsuit. To this ruling the plaintiff excepted. Exceptions overruled.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Bill in equity by Emile F. Bergeron against James Redfern. Decree for plaintiff, and defendant appeals. Appeal dismissed, decree affirmed, and cause remanded.

Charles H. McKenna and Herbert Almy, both of Providence, for appellant. Archambault & Archambault, of Providence, for appellee.

right, title, and interest in the land, and the following memorandum of the sale was written and signed by Berard on the back of the original agreement.

"Fall River, Mass., February 17, 1916. "I, Aime Berard, of Fall River, hereby quitclaim all my title, rights, and interests of whatsoever nature in land and buildings situate in Warren, Rhode Island, of which rights the other side hereof is a memorandum, to Emile F.. Bergeron, of Fall River, for one dollar and other considerations. I hereby further direct that the said deed to which I am entitled as gran tee be directly made to Emile F.. Bergeron. I further agree to execute any other paper to transfer my title and interests in the above property. Aime Berard."

The complainant, Bergeron, testified that on the day of the execution of the assignment, said 17th day of February, he showed! the assignment to the respondent, Redfern,. and requested the latter to convey the prop-erty to him, and offered to pay, upon such conveyance made, the balance of $50 due by the terms of the contract, but Redfern re-fused to make the conveyance. The respond-ent denied this, and testified that he had! never had any notice of the assignment:;: PER CURIAM. The original proceeding in that March 6, 1916, the respondent gave nothis case was by a bill in equity brought by tice in writing to said Aime Berard to var Emile F. Bergeron against James Redfern cate the premises in question and surrender to compel the specific performance of a writ-possession thereof to the respondent; that: ten contract to convey a certain parcel of March 18th the $75 paid on account of said. real estate, which contract is in the follow- lot of land was tendered by the respondent ing form: to said Aime Berard, who accepted the money and assented to the revocation of the agree ment of sale. The respondent never has pro-duced or offered a deed of the premises to ei ther Berard or Bergeron. No question of law was raised at the hearing in the superior .. $50.00 court; the sole issue was one of fact, namely, whether or not the respondent had no tice of the assignment to Bergeron, as claimed by the latter.

"Warren, R. I., July 17, 1915. Sold to Aime Berard one house lot No.

43 on Franklin Park for the sum of..$125.00

Cr. by cash....

Balance ...

to be paid when deeds are produced.

75.00

"James Redfern."

Issues of fact were framed and the case The trial justice decided the issue adversewas heard in the superior court on bill, an- ly to the claim of the respondent, and there swer, and oral testimony. A decree for spe- is ample evidence to warrant the decision. cific performance of the agreement and as- As no time for performance was fixed in the signment thereof dated February 17, 1916, written agreement for sale, under the auwas entered in the superior court, from thority of Bright v. James, 35 R. I. 128, 85, which decree an appeal was taken to this court, and the cause is now here on this appeal.

Atl. 545, Ann. Cas. 1915B, 1099, the delivery of the deed and the payment of the balance of the purchase price were to be concurrent From the admissions in the pleadings, and acts. As respondent had not tendered a the evidence it appears that the agreement deed at the time of the assignment, Berard above mentioned was made on said 17th was not then in default, and consequently day of July, on which day $75 in cash was Redfern, the assignee of Berard, when he paid by Berard to the respondent. Berard made his offer to pay the balance of the purtook possession of the land in question, erect- chase price, was entitled to the conveyance ed a building thereon, in which he for a time of the property. We find no error in the carried on a laundry business. The busi-action of the trial court.

ness was unsuccessful, and in October of The appeal is dismissed, the decree apthe same year was discontinued by Berard. pealed from is affirmed, and the cause is On the 17th of February, 1916, Bergeron remanded to the superior court for further purchased from Berard all of the latter's proceedings.