ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE OF DELAWARE.
MR. JUSTICE LAMAR delivered the opinion of the court.
This was an action of assumpsit brought in the Superior Court in and for New Castle County, Delaware, by Anthony Reybold against the Delaware City, Salem and Philadelphia Steamboat Navigation Company, a Delaware corporation, to recover a sum of money that had been received by the defendant company from the United States for the pilotage and hire of the steamboat Swan, which had been formerly owned by the company, and had been chartered to the government during the civil war.
The declaration contained the usual common counts. With respect to the two counts on which the plaintiff relied for a recovery, viz., (1) for money had and received, and (2) for work and labor performed, he filed a bill of particulars as follows:
"First. Money had and received by the defendant in this cause, to and for the use of the said plaintiff, to a large amount, to wit, the sum of two thousand eight hundred and ninety-eight dollars and eighteen cents, with legal interest thereon from the time the said defendant so had and received the same, to wit, from the twenty-ninth day of August A.D. 1882, said sum of money having been paid by the United States of America to the said defendant for the pilotage and
hire or service of a certain steam vessel, to wit, the Swan, formerly owned by the said defendant, and the said plaintiff being at the time of said payment and ever since entitled, as against the said defendant, to receive said money so paid as aforesaid.
"Second. Money due and owing at the time of the commencement of this cause from the said defendant to the said plaintiff, to a large amount, to wit, the sum of five thousand dollars, for the work, labor, care and diligence of the said plaintiff before that time done, performed and bestowed in and about the business of the said defendant, at the request of the said defendant, to wit, in and about the prosecution of a certain claim of the said defendant against the United States of America, amounting to a large sum of money, to wit, five thousand seven hundred and ninety-six dollars and thirty-six cents, for the pilotage and hire or service of a certain steam vessel, to wit, the Swan, formerly owned by the said defendant."
The defendant pleaded, (1) non-assumpsit; (2) payment; (3) set-off; and (4) the statute of limitations. Upon the issues thus joined the case went to trial. At the trial, as shown by the bill of exceptions, the plaintiff, to sustain the issue on his part, under the first count, submitted evidence tending to prove that in 1876 or 1877 the steamboat company had a claim against the United States, which it considered worthless, for the pilotage and hire of the steamboat Swan, formerly owned by it; that thereupon, at the request of the plaintiff, who was at that time one of the directors of the company, there was an agreement made and entered into between the plaintiff and the company that if he would undertake the collection of the claim he might have what he could get from it, provided the company should be at no expense in the matter; and that he afterwards prosecuted the claim to collection, and the steamboat company received a certain named sum of money as the proceeds thereof; to which sum the plaintiff claimed he was entitled, as money had and received to his use, under the provisions of the aforesaid agreement.
To sustain the issue raised under the second count, the
plaintiff introduced evidence tending to prove that, during a period of more than two years, he bestowed much care, work, labor and diligence in the prosecution of the claim against the United States to a successful termination; and his contention therefore was, that he was entitled to recover on a quantum meruit for such services.
The contention of the defendant was, (1) that no agreement had ever been made with the plaintiff whereby he was to receive and retain for his own benefit whatever he could collect from the government on the aforesaid claim, and that even if the agreement had been made, it could not be enforced because it was in violation of § 3477 of the Revised Statutes of the United States; and (2) that the plaintiff was not entitled to a recovery under the second count as on a quantum meruit, because the work was done under a contract claimed by it to be illegal: and on the trial of the case the defendant requested the court to charge the jury accordingly. The ...