
    Edward R. Dunham, Plaintiff, v. The Hastings Pavement Company, Defendant.
    
      Contract—it is the intent that illegal acts he done, not the doing of them, which renders it void.
    
    The doing of illegal acts under a contract will not necessarily render it invalid unless the parties contemplated-the performance of such acts, in which case the court will declare the contract void, as matter of law, irrespective ■ of the gravity of the illegal acts.
    Motion by the defendant, The Hastings Pavement Company, for a reargument after a decision in favor of the plaintiff upon a motion for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.
    The decision upon the original motion is reported in 56 Appellate Division, page 244.
    
      John 8. Sheppard, Jr., for the motion.
    
      Samuel Untermyer and Bernard M. Cone, opposed.
   Hatch,- J.:

It is evident from the character of the brief submitted by the defendant upon this motion, that its coupsel is laboring under a sincere conviction that this court entirely misapprehended the facts in this case and made misapplication of the rules of law applicable thereto.

The earnest insistance made in behalf of the defendant has induced us to make a careful re-examination of the. questions involved, and after an attentive consideration of the brief and of all the reasons which are assigned therein in favor of the motion, and after a re-examination of the original record in the Court of Appeals upon which the decision of Chesebrough v. Conover (140 N. Y. 382) was founded, we conclude that nothing was overlooked which vitally affects the conclusions at which we arrived in the decision rendered herein. ■

While much -was said by us by way of argument and illustration in the opinion which was delivered in deciding this case, nevertheless the decision itself was encompassed in very narrow bounds, and when stated will show that what is insisted upon as a misapprehension is, in reality, a quite radical disagreement as to the rules of law which we regard as controlling in the disposition of the case.

We stated that it was conceded below.that no taint of illegality appeared upon the face of the contract in question. It is now denied that it was so conceded. Assuming such to be the fact, it does not change the legal construction of the contract itself, and, whether conceded or not, in legal contemplation this contract, upon its face, is a valid contract and binding upon the parties thereto. If the answer had admitted that the contract was performed and no proof had been given of the character of the services rendered in its performance, the only question before the court would have been an assessment of the damages which the plaintiff became entitled to recover by reason of the breach. We, therefore, held that nothing which appeared upon the face of the contract precluded a right of recovery for a breach. Bearing this rule in mind, we further held that if the proof of acts done by the party in the performance of the contract did not show that the contract itself was intended as a mere cover for the performance of illegal acts, it was entitled to be enforced, the real question being, did the parties by the contract which they executed contemplate and intend the doing by the plaintiff, in performance thereof, of acts which were in violation of the principles of public policy, and, therefore, illegal ? Upon this point we held that it was the intent of the parties in entering into the contract which became the real issue and the subject-matter of investigation. We said: It is not, however, the doing of the improper act which is the sole test. There must be the contract and intent that it shall be performed. Of course, the doing of the unlawful act is or may be evidence of the intent, and characterize the contract, but it is not necessarily conclusive of it.” And, further, we said : “ If the contract contemplated legal service, and that alone, we do not think that it would be rendered illegal by the fact that the plaintiff did illegal acts in its performance. The question is, and continues, was the contract in fact for the performance of illegal service. If it was not, then it is valid and can be enforced. * * * One or several illegal acts performed under it may not render the contract void. The question is, did the parties contemplate the performance of such acts by the con-, tract which; they' made % The court will not stop to separate legal from illegal acts in order to uphold the contract in part. If the-contract contemplated one illegal act which the law condemns it will vitiate the whole, even though it also contract for' perfectly legal acts. But the characterization is to be made, based upon a. consideration of all that was done.”

It is at once apparent that the only disagreement which existed between this court and the- court below was in the fact that that court assumed to say, as matter of law, that the acts done in the-performance of the contract required it to- hold that the parties contemplated, when they executed it, the performance of acts against-public policy. This court said that a different inference might be-drawn from such acts, or - that, if some of them were illegal, their-performance was. not necessarily contemplated by the parties to the contract, and, therefore, it became a question of fact to which the jury alone could properly make answer. Such rule of law we-regard as being abundantly sanctioned by the decisions which, we cited in the opinion handed down with the decision. We did not overlook the fact that the plaintiff and Morgan consulted.with the aldermen in respect to the passage of resolutions authorizing the laying of the pavement. This evidence, as well as all other evidence in the case, was carefully considered and became the subject of discussion in reaching our conclusions.. ■:

It is quite evident to our minds that the mere performance of one- or several illegal acts would not necessarily render this contract.. invalid. Mere misconduct in the performance of the contract does-not -have the effect of vitiating it. On the other hand, if the parties-contemplated that illegal acts condemned by law were essential' or necessary in-its performance, the court would not stop to measure the gravity of the act, but would declare as matter of law that the Contract was void. The real question, therefore, which" this court, decided was that, upon the record, the inference to be drawn from, the testimony and the characterization of the contract, were matters-of fact and for the jury to determine. . Criticism is made that, in arriving at this conclusion, we made misapplication of the rule of law announced in the Ohesebrougli case. We- do not so read -that case. The' court did not assume to say therein that illegal, acts done-in the performance of a contract would necessarily vitiate the same. Cn the contrary, it said that if the parties contracted for the performance-of'illegal acts it would be void. In other words, it is not necessarily the performance of the illegal act that vitiates the contract ; but it is that the parties by their contract, contemplated that -such acts would be performed. That case clearly recognizes that such question is for the jury, as does also the case of Barry v. Capen (151 Mass. 99).

Assuming, for the purpose of the discussion, that the contract in -question is ambiguous, as urged by the defendant (which we do not concede) and that it therefore made evidence of the acts of the parties in its performance competent, as tending to show the interpretation which they put upon it, and as furnishing a guide in the construction of it, the result is the same. The question as to what the parties intended is still one of fact, and it was for the jury to say, under proper instruction from the court, whether or not the parties contracted for the performance of acts which render a contract unenforcible because against public policy.

In discussing the facts as shown by the record in the Ohesebrough case we were in error in stating that the plaintiff therein said to a member of Assembly to whom he delivered the bill, that he was directed to say that “if that bill passed he could get what he wanted.” This, it seems, was stated by the witness as coming from Conover, his employer, and was not said by him to the member of Assembly. It remains a fact, however, that he saw two other members of the railroad committee and conversed with them privately ubout the bill, and it also appears that he wrote letters, at the instance of Conover, respecting the signing of the bill by the Governor. We were also in error in saying that Maloney’s attendance was procured by the plaintiff. His attendance was procured by Conover, but the plaintiff talked with him privately in his office ■ :and at Conover’s office, respecting the form and character of the resolutions upon four different occasions.

What difference there could possibly be in the legal effect of the act whether the plaintiff or Conover procured the attendance of Maloney, the clerk, is not readily apparent. But assuming that we were wrong in the entire recital of the facts contained in that record, it does not in the slightest affect the legal question which we determined, and in respect of which we were under no misapprehension. As to that question, we may have decided wrong, but if so, it was hot because We did not understand it.

It is clearly evident from the discussion had ■ in the Qhesebrough case, and by the charge to the jury therein, that the court would have sustained a verdict if it had been the other way, and they would have been clearly authorized to have characterized the con-' tract and the acts of the plaintiff thereunder, as testified to by him, as illegal and void and against public policy. In that case the jury interpreted the acts differently, as they hacl the right to do. It is not necessary that we further discuss the question presented. It is clear that the disagreement between the defendant and this court, does n.ot not arise from anything that we assumed or overlooked, We disagree as to the; law. It is, therefore, apparent that no rule governing motions for reargument have application to this case.

The motion should, therefore, be denied.

Yah Brunt, P. J., Patterson and Ingraham, JJ., concurred.

Motion denied.  