
    Charles N. Swift, Respondent, v. United States Regulation Fire Arms Company, Appellant.
    First Department,
    April 5, 1907.
    Principal and agent — contract to procure legislation—when plaintiff not procuring cause of appropriation.
    In an action to recover commissions upon moneys paid by the Federal government for the infringment of patents, it appeared that the plaintiff sought to recover upon a verbal contract made in 1879 to procure legislation appropriating money for the infringement; that thereafter, in 1881, a written contract to the same effect was made by the defendant limiting plaintiff’s services to a particular session of Congress; that the actual appropriation made in 1903 was due to the solicitation of a person with whom the plainti ff was unconnected.
    Upon the whole evidence,
    
      Held, that the plaintiff was not the procuring cause of the appropriation and his complaint should have been dismissed.
    Appeal by the defendant, the United States Regulation Fire Arms Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 24th day of October, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the . 15th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hamilton R. Squier, for the appellant.
    
      Edward A. Alexander, for the respondent.
   Scott, J.

.Plaintiff sues upon two causes' of action: First. .Upon a verbal contract said to have been made in 1879, whereby he agreed “to employ his efforts and use his best endeavors in a lawful manner to have the Congress of the United States pass an act making an appro-, priation for the defendant for damages which it had sustained by reason of the United States infringing- certain patents which were owned or controlled by the defendant; ” and that defendant agreed, in consideration of plaintiff’s aforesaid agreement, to pay and allow to plaintiff twenty per cent of any and all sums obtained from the government of the United States pursuant to any act of Congress which the plaintiff would lawfully procure to be- passed, or which would be passed through his efforts in urging the defendant’s claim as aforesaid. He further alleges that he performed the contract on his part, and that in -or about the year 1902, through the lawful efforts and endeavors of the plaintiff, Congress appropriated $25,000, which was paid to defendant. Second. Upon a quantum meruit for services performed and moneys expended at request of defendant, from January 1, 1878, to the year 1901, the service being valued at $4,150 and the disbursements fixed at $3,300.

It is a little’difficult to understand all that this second cause of action is intended to cover. It aj>pears to include the services contemplated by the contract set up- in the first cause of action, and some disbursements incurred in various other matters. - It is not very . important, however, because all the items, or nearly all, are barred by th¿ Statute of Limitations which defendant pleads, and no competent proof was offered as to any of them. The court did, however, instruct the jury that they might allow plaintiff $1,800 for disbursements in addition to twenty per cent of the amount colleeted from the government, and this they did allow, although it is quite impossible to ascertain from the evidence how this $1,800 was arrived at. The plaintiff testified that the verbal contract set out in the complaint was made in behalf of defendant in 1879 by a Hr. Compton, who plaintiff at first says was then president of the-company, although the fact is that he was then secretary, becoming president later. He says that this- was the only contract he had, and upon which he now claims, and that Compton, after he became president, renewed, or rather recognized it from time to time.

On the trial the plaintiff amplified his statement of the contract somewhat by testifying that Compton agreed to pay him not only twenty per cent of the amount collected, but also his expenses. The plaintiff’s testimony on this subject is very confused, and in one place he apparently says that the agreement was to pay him twenty-five dollars a week for expenses while he was in Washington, and that that was paid him.

He testified ¡positively that this same contract was in force all the time he was in Washington, but it was shown that in 1881 a written contract was made, covering the subject between defendant on the one hand and plaintiff and one Hanning on the other, which was limited to the Forty-eighth Congress, and provided for a payment of twenty-five per cent of the amount allowed by Congress, or by the Court of Claims under an act to be passed by Congress.

Under this contract plaintiff and Hanning were, at their own expense, to use every fair and legal means towards obtaining the passage of a bill for the relief of defendant, with the understanding that if the bill failed at the Forty-eighth Congress the agreement was to be void.

In point of fact plaintiff never secured the passage of a bill. He went to Washington to promote its passage pretty regularly until 1883. He did nothing between 1883 and 1897 except that he went to Washington two or three times on his “own hook,” as he expressed it, and after 1897 apparently ceased his efforts. Later the defendant employed a Hr. Creecy of Washington, through whose efforts a bill was put through and the money collected. Plaintiff had nothing to do with Creecy, except that he says that he advised his employment by defendant.

It is perfectly clear upon Ms own story that plaintiff should hot have been allowed to go to the jury — much less should a verdict in his favor have been allowed to stand. .

•Upon his own story his right to compensation was dependent upon his success, and he never succeeded. Having arrived at this conclusion it is unnecessary to consider the question suggested by defendant as to the validity of the contract.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., McLaughlin, Houghton and Lambert, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  