Ashburner v. Parrish

1. The plaintiff being in the employ of the defendants entered into a eon-tract with the United States, in his own name, for their benefit, and they became his sureties. Held, that the contract was against public policy and void. 2. The contract was an imposition on the government, which was entitled to a real principal and sureties who were not interested as principals. 3. The contract being against public policy the plaintiff could not recover from the defendants compensation for his services in procuring it.

Error to the District Court of Philadelphia: Of January Term 1874, No 294. This was an action of assumpsit, brought February 8th 1868, by Theophilus A. Ashburner, against George D. Parrish and others, trading as George D. Parrish & Co. The declaration was in the common counts; it was filed February 6th 1869 ; the same day a bill of particulars was filed, setting out that the plaintiff claimed the sum of $198,600, received by the defendants for his use on a contract, dated December 3d 1864, between Col. H. Biggs, quarter master, &c., of the United States army and the plaintiff, by which plaintiff agreed to have manufactured and delivered to the United States Arsenal, Philadelphia, on or before April 3d 1865, thirty thousand blankets, according to the quality and on certain conditions and terms specified in the contract, payment to be made by the United States upon delivery, &c. The last specification in the contract was :— “ 6. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable; that any sale, transfer or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and the said party of the second part, his or their securities be held responsible for all loss, delay or damage to the United States, which may arise from such abandonment.” The plaintiff averred that the “ said sum had. been received by defendants from the 27th day of April 1865 to June 8th 1865, both inclusive, on vouchers delivered by the said plaintiff to the said defendants. May 1st 1869, the plaintiff’s counsel gave to the defendants’ counsel the following notice:— “ Under the common counts, plaintiff will seek to recover a reasonable-compensation for the procurement of the contract, of w'hich a copy was sent you February 6th 1869; that is to say, the sum of five per cent, on the aggregate amount received by the defendants under that contract.” On the 3d of April 1873, by leave of the court the plaintiff amended his hill of particulars as follows :— “ Under the common counts, plaintiff will seek to recover compensation for the use of his name, and the personal assumption of responsibility in the contract of which formerly notice was given, and for services in regard thereto, which were not within the scope of his employment as salesman of the defendant.” ' On the trial December 30th 1873, before Briggs, J., the plaintiff offered in evidence the original of the contract hereinbefore set forth: the defendants objected to the offer because the demand of the plaintiff in support of which the evidence was offered, was void as against public policy and the Act of Congress, June 2d 1862. The court rejected the offer and sealed a bill of exceptions. The plaintiff offering no other evidence, the court directed a non-suit. The Act of Congress of June 2d 1862 (2 Brightly’s U. S. Digest, p. 93), provides amongst other things, that government contracts shall be signed by the contracting party; that the officer making the contract shall make affidavit that he has not corruptly allowed any advantage to the contractor or any other person. The plaintiff took a writ of error and assigned the rejection of this offer of evidence for error.