Every part of the consideration for a contract goes equally to
the whole promise, and if any part of it is contrary to public
policy, the whole promise falls.
A contract to deliver property at an agreed price within the
duration of specified session of Congress, it being understood that
a part of the consideration is that the person to whom the property
is to be conveyed is to endeavor to sell it to the United States
and to procure legislation to that end -- he not being under
obligation to take and pay for the property -- is void as against
public policy, and specific performance will not be enforced.
The facts are stated in the opinion.
Page 202 U. S. 76
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill for the specific performance of a contract
dated
Page 202 U. S. 77
December 11, 1902, to sell for $9,000 at any time during the
then present session of Congress, "and such additional time as may
be necessary for settlement under appropriation by that Congress,"
part of a lot in a square which Congress now has voted to acquire
for the erection of a hall of records.
The bill was brought against one Miller. Recently Miller's death
was suggested, and his heirs and devisees were substituted, but,
for convenience, Miller will be referred to as the defendant.
The contract provided that, if Hazelton should "fail to take
advantage of and accept this offer as above within the time
mentioned, then this agreement shall be null and void." The bill
alleges that a part of the consideration for the contract
"was services rendered both before and after the making of said
contract, by the plaintiff in bringing the property to the
attention of the committees of Congress as a suitable and
appropriate site for a hall of records."
It sets forth that the plaintiff, before and after the same
date, expended much time, labor, and money in rendering those
services, and what they were,
viz., collecting and
printing facts for the information of the committees and members of
Congress, making briefs and arguments, and drawing a bill for the
purchase or condemnation of the square. The bill passed at the
session named in the contract. After its passage, the plaintiff
negotiated, and finally, in August, 1903, concluded, a sale of the
property in question for $14,395.50, subject to examination of the
title and arrangements for payment. It is alleged that the time for
settlement under the appropriation has not expired. The bill
further alleges that the defendant has notified the plaintiff that
he does not intend to keep his contract, but means to convey
directly to the United States, and to demand the full price agreed
upon by the government. The defendant has tendered a deed to the
United States, which has not been accepted. The plaintiff has
offered to the defendant a deed, to be executed by the latter and
his wife, and tendered $9,000, but the defendant has refused to
execute the same. There was a general
Page 202 U. S. 78
demurrer to the bill, and this was sustained by the Supreme
Court of the District and the Court of Appeals, and the bill was
dismissed. The plaintiff appealed to this Court.
We assume that the bill sufficiently shows an acceptance of the
defendant's offer within the time, although it does not allege it
in terms. We assume also that the consideration is alleged
sufficiently, subject to the question whether it is one upon which
a contract lawfully may be based. But the court is of opinion that
that question must be answered in the negative. Every part of the
consideration goes equally to the whole promise, and therefore, if
any part of it is contrary to public policy, the whole promise
falls.
Pickering v. Ilfracombe Ry. Co., L.R. 3 C.P. 235,
250;
Harrington v. Victoria Graving Dock Co., L.R. 3 Q.B.
Div. 549;
Woodruff v. Hinman, 11 Vt. 592;
Clark v.
Ricker, 14 N.H. 44;
McMullen v. Hoffman, 174 U.
S. 639;
Bishop v. Palmer, 146 Mass. 469, 474.
According to the bill, and, no doubt, according to the fact, a part
of the consideration was services, as we have quoted, and therefore
it is not true, as argued, that the plaintiff could have demanded a
conveyance on tendering the $9,000 alone. But the services
contemplated as a partial consideration of the promise to convey
were services in procuring legislation upon a matter of public
interest, in respect of which neither of the parties had any claim
against the United States. An agreement upon such a consideration
was held bad in
Providence Tool Co. v.
Norris, 2 Wall. 45. Of course, we are not speaking
of the prosecution of a lawful claim.
It will be noticed further that the conveyance was in substance
a contingent fee. The plaintiff was not bound to accept it, and
naturally would not do so unless he could agree, as he did with the
government, for a larger price. The real inducement offered to him
was that he would receive all that he could persuade the government
to pay above the sum named. It is true that, if we take the
inartificial statements of the bill literally, the part of the
consideration which we are discussing was the services, not a
promise to render them. The promise to
Page 202 U. S. 79
convey did not become binding until the services were rendered,
and, when rendered, according to the allegations of the bill, they
were legitimate. We assume that they were legitimate, but the
validity of the contract depends on the nature of the original
offer, and, whatever their form, the tendency of such offers is the
same. The objection to them rests in their tendency, not in what
was done in the particular case. Therefore a court will not be
governed by the technical argument that, when the offer became
binding, it was cut down to what was done, and was harmless. The
court will not inquire what was done. If that should be improper,
it probably would be hidden, and would not appear. In its
inception, the offer, however intended, necessarily invited and
tended to induce improper solicitations, and it intensified the
inducement by the contingency of the reward.
Marshall
v. B. & O. R. Co., 16 How. 314,
57 U. S.
335-336.
The general principle was laid down broadly in
Tool Co. v.
Norris, 2 Wall. 45,
69 U. S. 54, that
an agreement for compensation to procure a contract from the
government to furnish its supplies could not be enforced,
irrespective of the question whether improper means were
contemplated or used for procuring it.
McMullen v.
Hoffman, 174 U. S. 639,
174 U. S. 648.
And it was 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 the
heads of departments. 2 Wall.
69 U. S. 55. In
Marshall v. Baltimore &
Ohio R. Co., 16 How. 314,
57 U. S. 336,
it was said that all contracts for a contingent compensation for
obtaining legislation were void, citing, among other cases,
Clippinger v. Hepbaugh, 5 W. & S. 315, and
Wood v.
McCann, 6 Dana, 366.
See also Mills v. Mills, 40 N.Y.
543. There are other objections which would have to be answered
before the bill could be sustained, but that which we have stated
goes to the root of the contract and is enough to dispose of the
case under the decisions heretofore made.
Decree affirmed.