Opinion
[Syllabus Material] [Syllabus Material] Rehearing Denied 20 Cal. 182 at 186.
Appeal from the Eleventh Judicial District.
The contract, for the breach of which this action is brought, was a verbal one, and is stated in the complaint as follows:
That " on the ___ day of ___, A. D. 1858, being a short time previous to the letting of the mail contract for carrying the United States mail from the city of ___, California, to the city of Salt Lake, Utah Territory, by the Post Office Department at Washington City--the said plaintiff and defendant being both mail contractors; and the said defendant being desirous to obtain from said Department the contract for carrying the said mails between said Salt Lake City and the city of Placerville; and the said plaintiff being desirous to obtain a like contract for carrying said mails between the said city of Placerville and Carson Valley, being a portion of the same mail route from the city of Placerville to Salt Lake City; and having already put in a bid therefor, for the mutual benefit and advantage of both parties, plaintiff, through his agent B. R. Nickerson, and the said defendant in person, contracted as follows: The said plaintiff, by his agent B. R. Nickerson, agreed to withdraw the bid which he had made for the contract for carrying the mails between the city of Placerville and Carson Valley, as aforesaid, and make such proof as was necessary, showing the route from the city of Placerville to Salt Lake City to be practicable, to the Post Office Department at Washington, and render such other and further assistance as he might be able in procuring a contract for said defendant from said Department, for carrying the United States mails between the city of Placerville and Salt Lake City for the term of four years next ensuing; and in consideration of said agreement on the part of the plaintiff, the said defendant agreed that if he obtained the contract for carrying said mails between the two cities aforesaid, he would give to the said plaintiff the service or carrying of the mail from the city of Placerville to Carson Valley, and divide the contract price for carrying said mails between the two cities aforesaid pro rata between the plaintiff and defendant, or would give to said plaintiff and equivalent in money instead thereof."
A demurrer to the complaint, on the ground that the contract set forth was void as against public policy, was overruled, and a jury trial was had and verdict for plaintiff for $ 30,000. Defendant moved for a new trial, which was granted by the Court below, and from this order the plaintiff appeals.
COUNSEL:
I. The contract is not against public policy; to make it void it must appear that the Government was injured in some way. That such is not the case is manifest from the fact that Government is thereby enabled to make a contract for much longer service, and therefore more beneficial to the public. No competition is prevented by this contract, for the reason the service contracted for was not sought by plaintiff; and there was no competition between him and plaintiff which was prevented by this contract to the prejudice of the Department. (Sedgwick v. Stanton, 4 Kernan, 289; Richardson v. Mellish, 9 Eng. Com. Law R. 557; Bryam v. Reynolds, 5 Wisconsin, 200; Chadwick v. Knox , 31 N.H. 226; Formby v. Pryor, 15 Geo. 258; Winch v. The Birkenhead, Lancashire and Cheshire Junction R. Co., 13 Eng. Com. Law and Eq. 506; Phillipotts v. Phillipotts , 1 Id. 339; Fox v. Cash, 11 Penn. R. [1 Jones] 207.)
II. The principles governing purchasersat judicial sales are applicable to the present case.
While contracts not to bid at such sales are held to be void, contracts made for the purpose of enabling parties to bid together, or agreements whereby several are able to bid as one, are sustained by the law. (James v. Tulcrome, 5 Texas, 512; Small v. Jones, 6 Watts & Serg. 122.)
S. W. Sanderson, for Appellant.
John Hume, for Respondent.
The contract as alleged in the complaint was void as being against public policy.
Plaintiff alleges that he put in a bid for the route from Placerville to Carson Valley, which was a portion of the route from Placerville to Salt Lake City; that upon a promise by defendant that he would give him an interest in the longer line, he (plaintiff) withdrew his bid. Such contracts among bidders for mail, or other Government contracts, necessarily tend to the prejudice of the Government, and are consequently void. The bid of Swan for the Carson Valley portion of the route was either better or worse for the Government than defendant's bid for the same portion of the line; if better, it would have been accepted; if worse, rejected. By this agreement, the Department was prevented from accepting the bid of plaintiff, which they would have had an opportunity to do, if it had not been withdrawn. (Gulick v. Baily, 5 Halstead R. 87.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
On petition for rehearing--Per Cope, J., Field, C. J., concurring.
The petition for a rehearing in the case must be denied; but as the counsel for the appellant thinks that the complaint can be amended so as to avoid the objection upon which we directed a dismissal of the suit, we shall modify our judgment in that respect. The judgment will be so modified as merely to affirm the order appealed from, and the Court below, before proceeding to retry the case, may allow such amendments to the complaint as shall appear to be proper, in view of the opinion expressed by us upon the validity of the contract as set forth in the complaint as it now stands.
Petition denied, and judgment modified as above stated.