of his statement, was the right of pre-emp-| tion only. In other words, the right of purchase before any other person, and by the law of Congress that right ceased at the expiration of thirty months from the filing of that statement. Thereafter there was no claim, for it had ceased and determined, and with reference to the right it was of no more validity after the expiration of that time than if the statement had never been filed. After the filing of a statement and while the time is running within which to make proof, there is an inchoate right on the part of the preemptor which the government recognizes, as in Frisbie v. Whitney, 9 Wall. 187 [19: 668]. It was held in Johnson v. Towsley, 13 Wall. 72, 90 [20: 485, 489], that in case the preemptor failed to file his declaration of intention within three months from the time of settlement, as provided for in the fifth section of the act of 1843 (5 Stat. at L. 620, chap. 86), he nevertheless would have the right after the expiration of the three months, being in possession, to then make and file his declaration, provided no other party had made a settlement or had given notice of his intention to make one and no one would be in

jured by the delay. But the case is far from holding that after the declaration has been filed and the time in which to prove up and [636]make payment *upon his claim has wholly expired, that the claim nevertheless still exists in sufficient force to prevent the transfer of title to the company under the act of Congress, simply because the officer of the land office has failed to perform a mere ministerial duty by canceling of record a claim which has really ceased to exist by operation of law. A claim is not an existing one where by the record it appears that the right to make proof and payment has expired under the terms of the statute.

It appears that it has not been the practice of the Interior Department to enter any formal cancelation of an expired pre-emption filing upon the books of the office; its practice has been to take no action concerning them. They have simply been treated as abandoned claims. State of Alabama, 3 Land Dec. 315, 317.

Reference is made in the briefs to the circular of Commissioner Drummond, dated September 8, 1873, in which he says:

"By the operation of law limiting the period within which proof and payment must be made in pre-emption cases, such claims are constantly expiring, the settler not appearing within such time to consummate his entry. These expired filings are classed with those actually abandoned or relinquished." And again in the circular of November 8, 1879, the Commissioner said:


what is termed an "expired filing" of the na-
ture of the one in suit has not been uniform.
It was in substance held in some cases that
such expired filing amounted to a claim with-
in the meaning of the statute, and that the[637]
land did not pass under the grant to the
railroad company. Emerson v. Central Pa-
cific Railroad Company, 3 Land Dec. 117;
same case on motion for a rehearing, 3 Land
Dec. 271; Schetka v. Northern Pacific Rail-
road Company, 5 Land Dec. 473; Allen
Northern Pacific Railroad Company, 6 Land
Dec. 520; Fish v. Northern Pacific Railroad
Company, 21 Land Dec. 165; same case on
motion for a rehearing, 23 Land Dec. 15. On
the other hand, we have been referred to the
cases of Northern Pacific Railroad Company
v. Stovenour, 10 Land Dec. 645; Meister v. St.
Paul etc. Railroad Company, 14 Land Dec.
624; Union Pacific Railroad Company v.
Hartwich, 26 Land Dec. 680; Wight x. Cen-
tral Pacific Railroad Company, 27 Land Dec.
182; Central Pacific Railroad Company v.
Hunsaker, 27 Land Dec. 297. The last two
cases cited touch the question very remotely,
it at all.

which our attention has been called is that of
Union Pacific Railroad Company v. Fisher, de-
cided February 1, 1899. 28 Land Dec. 75. In
that case the Secretary refers to the cases
which have been cited above, holding that an
expired filing excepted the land from a grant
to the railroad company, and he gives his rea-
sons for the decisions of the department in
those cases, which he thinks render them not
altogether in conflict with the other decisions
of the department.

The latest decision of the land office to

Although these decisions are somewhat inharmonious, it would seem that the practice of the department not to enter as canceled an expired filing has been uniform, and the record has been left to speak for itself..

For the reasons which we have already given, we think it was unnecessary to enter the cancelation on the record of the office in order to permit the law of Congress to have its legal effect. That effect should not be dependent upon the action or nonaction of any officer of the land department. When no proof and no payment have been made within the time provided for by the law, the record will show that fact, and that the right of the claimant has expired and the claim itself has ceased to exist.

A case of this kind, which simply necessi tates a reference to the record to ascertain[638] whether the filing had expired and with it the rights of the claimant, differs from the case where a filing may have become subject to cancelation; but the record does not show "Where application is made by a railroad it, and the right to cancel depends upon evicompany to select lands on which pre-emp-dence to be found dehors the record. In such tion filings have heretofore been made and case, while the facts might invalidate the canceled, or where the same have expired by claim, yet as they are not of record and relimitation of law, no other claim or entry ap-quire to be ascertained, the claim itself, pearing of record, you will admit the selections, in accordance with the rules governing in the premises herein communicated. No proofs by the companies concerning such claims will hereafter be required."

The effect given by the land department to

though possibly not enforceable, is still an
existing claim within the meaning of the law,
and it would remain such until cancelation
had taken place or some other act done le
gally terminating the existence of the claim.

Upon the facts as found in this case, it


The unity, of such a contract cannot be severed or its effect altered by putting part of it in writing and leaving the rest in parol.

A written contract which appears to be legal on its face may be proved to be only part of a contract the other portions of which were illegal.

5. In any action brought in which it is necessary to prove an illegal contract in order to maintain the action, courts will not enforce It, nor will they enforce alleged rights directly springing from such contract.

seems to us that there was no claim against | 3.
the land at the time of the passage of the act
of 1864, and that years before the time of the
filing of the map of definite location in 1884
the claim that once existed (in 1869) in
favor of Flett had ceased to exist in fact and
in law, and the title to the land passed to
the railroad company by virtue of the grant
contained in the act of 1864 and by reason
of the filing of its map of definite location
March 26, 1884. When, therefore, the de-
fendant settled upon the land in April, 1886,
and applied to make homestead entry there-
on, his application was rightfully rejected
for the reason that title to the land had
passed to the railroad company, as above
mentioned, and therefore he was not entitled
to make the entry.


An accounting of the profits of a partnership will not be awarded where the partnership was only part of a contract of which the other portions were illegal.

[No. 271.]


For the same reason, when John Flett, in Argued April 27, 28, 1899. Decided May 22, September, 1887 (submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869

(and which claim he had abandoned since ON WRIT OF CERTIORARI to the United

States Circuit Court of Appeals for the 1870), he was too late. His right had ex- Ninth Circuit to review a decree of that pired many years before 1884, at which time court in an action brought by John McMullen the right to the land passed to the company, against Lee Hoffman and on his death reand he had no right to prove up on his aban-vived against Julia E. Hoffman as the execudoned and expired claim.

The record shows that at the time of the commencement of this action the railroad company was the owner and entitled to the immediate possession of the land in controversy, and that it was entitled therefore to judgment in its favor, and the courts below erred in dismissing its complaint. [639] *The judgment of the United States Circuit Court of Appeals for the Ninth Circuit is reversed, and the case remanded to the Circuit Court for the Western Division, District of Washington, for further proceedings not inconsistent with the opinion of this court. So ordered.

trix of his will for an accounting of profits upon a contract with the city of Portland which the circuit court of appeals holds to be illegal, reversing the decree of the Circuit Court of the United States for the District of Oregon. Judgment of Circuit Court of Appeals affirmed.

See same case below, 69 Fed. Rep. 509, 75 Fed. Rep. 547, 48 U. S. App. 596, 83 Fed. Rep. 372, 28 C. C. A. 178. See also 170 U. S. 705, mem.

Statement by Mr. Justice Peckham:

*This action was originally brought by the[640] complainant McMullen against one Leo Hoff

Mr. Justice Harlan and Mr. Justice Mc-nan, and he having died before the trial,

Kenna dissented.

JOHN MCMULLEN, Petitioner,


the action was revived against the defendant Julia E. Hoffman, as the executrix of his will. When the defendant is hereinafter spoken of the original defendant is intended.

The complainant filed his bill against the defendant seeking an accounting of profits that he alleged had been made by the defend

JULIA E. HOFFMAN, Executrix of Lee ant upon a certain contract for the construc-
Hoffman, Deceased.

(See S. C. Reporter's ed. 639–670.)

Secret agreement between bidders for public
contract, when illegal-action on contract
-unity of contract-contract partly writ-
ten and partly parol-partnership ac-

1. A secret agreement between bidders for a
public contract, by which their separate bids
are put in after mutual consultation and
agreement, and they have a common interest
In each bid, if any are accepted, and are to
share as partners in any contract obtained,
Is illegal in its nature and tendency. It is
not necessary to show the particular effect of


the contract. as such contracts are condemned
by public policy.

One of the parties cannot maintain an ac-
tion on the valld part of the contract relat-
ing to the partnership, by discarding or omit-
ting to prove that portion which is illegal.

tion of what is termed the Bull Run pipe line and which contract was entered into between the city of Portland in the state of Oregon, and the defendant on or about March 10, 1893. The complainant bases his right to share in the profits of that contract by virtue of another contract in writing between himself and the defendant herein, executed March 6, 1893. That agreement reads as follows:

This agreement, made and entered into by and between Lee Hoffman, of Portland, Oregon, doing business under the name of Hoffman & Bates, party of the first part, and John McMullen, of San Francisco, California, party of the second part, witnesseth: That, whereas, said Hoffman and Bates have with the assistance of said McMullen at a recent bidding on the work of manufacturing and laying steel pipe from Mount Tabor to the head works of the Bull

Run water system for Portland, submitted the lowest bid for such work, and expect to enter into a contract with the water committee of the city of Portland for doing such work, the contract having been awarded to said Hoffman and Bates on said bid: [641] *It is now hereby agreed that said Hoffman and said McMullen shall and will share in said contract equally, each to furnish and pay one half of the expenses of executing the same, and each to receive one half of the profits or bear and pay one half of the losses which shall result therefrom.

And it is further hereby agreed that if either of the parties hereto shall get a contract for doing or to do any other part of the work let or to be let by said committee for bringing Bull Run water to Portland, the profits and losses thereof shall in the same manner be shared and borne by said parties equally, share and share alike.

Witness our hands and seals this 6th day of March, A. D. 1893.

John McMullen. Lee Hoffman.

[Seal.] [Seal.]

The contract for manufacturing and lay ing the steel pipe was awarded to the defendant at a public letting of the whole work at Portland of which the manufacturing and laying of the pipe was a part, and the whole work was divided into classes, and separate bids called for and received for each class.

The defendant put in bids in the name of Hoffman & Bates for several classes, while the plaintiff in the name of the San Francisco Bridge Company (of which he was an officer) put in separate bids for the same


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There were several other bids by different bidders for these various classes. The bid in the name of Hoffman & Bates for the manufacture and laying of the wrought iron or steel pipe from the head works to Mount Tabor being $465,722, was the lowest out of

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All these bids were before the committee on sideration at the time the award was made the part of the city, and were taken into conto the defendant. After the acceptance of his bid for the manufacturing and laying of the pipe the defendant entered into a contract with the city of Portland to do the work mentioned in such bid and commenced the performance of the contract as provided for therein. The work was duly completed and the city paid defendant the contract price for the same, retaining the percentage provided for therein, as security that the terms of the contract had been fully complied with.

The complainant alleges that defendant, after securing the contract, went on with the work thereunder, but refused to permit him to participate in the profits arising therefrom or to examine the books of the partnership, and that although he (complainant) furnished some of the capital and performed some of the services provided for in the con-[643] tract with the city, and participated in some of the expenses of the execution of the contention to the proper performance thereof, tract, and devoted some of his time and atand was at all times ready to do everything required of him by his agreement of partnership, yet that the defendant received all the moneys paid by the city and absolutely refused to account to him for any part thereof, and denied that he had any interest in or right to any portion of such moneys. The complainant, therefore, asked for an accounting between himself and defendant, as partners, and for a decree for the payment to him of one half the profits arising from the contract, the whole of which he alleged amounted to $80,000 (the courts below say the evidence shows they were $140,000); that a receiver might be appointed to take charge of the property of the partnership, its records, books, papers, etc., and that the defendant might be restrained during the pendency of the suit from making sale or other dispo sition of the tools, equipments, or other personal property belonging to the partnership, and from drawing from the city of Portland the moneys withheld by it on account of the contract, as well as any other money due for other work done by the defendant under the contract of partnership.

The answer of the defendant, while denying many of the allegations of the complaint, set up as a special defense the making of an agreement between the parties (of which the partnership agreement was a portion), by the terms of which they were to put in bids

for the construction of the work, the complainant in the name of the San Francisco Bridge Company and the defendant in the name of Hoffman & Bates; that the bids should not be in reality competitive, but should be submitted to each other before they were put in, and their terms should be mutually agreed upon, the higher bids to be merely formal, and the bids themselves as agreed upon should be delivered to the water committee; that if either party received the contract, they should both share in the profit or loss resulting from its performance, but that their mutual interest in each other's bids should not be made known when the bids were offered, so that it would appear that they were apparently competing for the various classes of the work and for furnishing the material, when in fact they were not. This agreement, the defendant alleged, was carried out, and the contract secured by means thereof.

The court upon motion of the complainant granted a temporary injunction as prayed for in the bill. Exceptions were taken to certain parts of the answer of the defendant as being insufficient. Material portions of these exceptions were overruled by the court upon the ground that the answer set up an illegal contract between the parties, and one which could not be enforced by either. 69 Fed. Rep. 509.

Upon the final hearing of the case the same judge, becoming convinced that he had erred in his former decision in overruling the exceptions to the answer, decided that the case as made on the part of the defendant showed no defense to the complainant's cause of action, and thereupon he made a decree for an accounting substantially as asked for in the complainant's bill. 75 Fed. Rep. 547.

An appeal from the decree of the circuit court was taken to the United States circuit court of appeals for the ninth circuit, and that court held that the contract between the parties was illegal, and that no action could be maintained thereon by either, and the decree in favor of the complainant was therefore reversed. 48 U. S. App. 596. Complainant then applied to this court for a writ of certiorari to review the judgment of the circuit, court of appeals, which was granted May 9, 1898. 170 U. S. 705, mem.

Messrs. William A. Maury and L. B. Cox, for petitioner:

duty of Hoffman to account to him for half their earned profits, which duty grew or al and rested upon their relationship as partners.

Hanks v. Baber, 53 111. 292; Chace v. Trafford, 116 Mass. 532, 17 Am. Rep. 171; Tenant v. Elliott, 1 Bos. & P. 3; Farmer v. Russcll, 1 Bos. & P. 296.

An obligation will be enforced, though indirectly connected with an illegal transac tion, if it is supported by an independent consideration, so that the plaintiff does not require the aid of the illegal transaction to make out his case.

Swan v. Scott, 11 Serg. & R. 155; Armstrong v. American Exch. Nat. Bank, 133 U. S. 433, 33 L. ed. 747; Frost v. Plumb, 40 Conn. 111, 16 Am. Rep. 18; Wright v. Pipe Line Co. 101 Pa. 204, 47 Am. Rep. 701.

The grounds upon which McMullen is entitled to recover in this suit have been established and repeatedly declared by this court and by other courts of the Union, both Federal and state.

Planters' Bank v. Union Bank, 16 Wall. 483, 21 L. ed. 473; Union P. R. Co. v. Durant, 95 U. S. 576, 24 L. ed. 391; Wann v. Kelly, 2 McCrary, 628; Hipple v. Rice, 28 Pa. 406; Gilliam v. Brown, 43 Miss. 641; Willson v. Owen, 30 Mich. 474; Owen v. Davis, 1 Bail. L. 315; Harvey v. Varney, 98 Mass. 118; Lewin, Trusts, 68; McDaniel v. Maxwell, 21 Or. 202; Smith v. Hubbs, 10 Me. 71; Ownes v. Ownes, 23 N. J. Eq. 60; King v. Winants, 71 N. C. 469, 17 Am. Rep. 11.

Each portion of said agreement between Hoffman and McMullen was readily severable from the other, and each was substantially a distinct contract, which could, if necessary, be enforced quite independently of the other.

Oregon Steam Nav. Co. v. Winsor, 20 Wall. 70, 22 L. ed. 319; Pickering v. Ilfra combe R. Co. L. R. 3 C. P. 235; Bank of Australasia v. Breillat, 6 Moore, P. C. c. 200; Treadwell v. Davis, 34 Cal. 601, 94 Am. Dec. 770; Erie R. Co. v. Union Locomotive & Exp. Co. 35 N. J. L. 240.

The action of McMullen in submitting a high bid for the work in suit had no rational tendency to deceive the water committee.

Wicker v. Hoppock, 6 Wall. 94, 18 L. ed. 752; Veazie v. Williams, How. 134, 12 L. ed 1018; Conolly v. Parsons, cited in 3 Ves. Jr. 625, note e; National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 159.

Mr. Rufus Mallory, for respondent: No partnership touching the work in conMcMullen and Hoffman combined, not as troversy resulted from anything which honest bidders, but to prevent competition. transpired between Hoffman and McMullen Atcheson v. Mallon, 43 N. Y. 147, 3 Am. prior to the award made upon Hoffman's Rep. 678; Doolin v. Ward, 6 Johns. 195; bid, nor until they had signed the partner-Wilbur v. How, 8 Johns. 444; Swan v. Chorship agreement of March 6, and entered upon the performance of the work contemplated therein.

Powell v. Maguire, 43 Cal. 11; Reboul v. Chalker, 27 Conn. 114; Wilson v. Campbell, 10 Ill. 383; Lycoming Ins. Co. v. Barringer, 73 Ill. 230; Doyle 7. Bailey, 75 Ill. 418; Meagher v. Reed, 14 Colo. 335, 9 L. R. A.


McMullen's cause of suit was not based upon the partnership contract, but upon the

penning, 20 Cal. 182; Gulick v. Ward, 10 N. J. L. 107; Thompson v. Davies, 13 Johns. 112; Holladay v. Patterson, 5 Or. 177; Richardson v. Crandall, 48 N. Y. 348; Gibbs v. Smith, 115 Mass. 592; Engelman v. Skrainka, 14 Mo. App. 438; Woodruff v. Berry, 40 Ark. 251; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; Hunter v. Pfeiffer, 108 Ind.


Agreements, the natural tendency of which is to prevent competition in sales at

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[644] *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court:

The foregoing statement shows that there is a difference of opinion in the courts below [645]as to the law applicable to the case. The question is one of importance, involving as it does the principles which should control in regard to the procurement of contracts at public lettings for work to be awarded to the lowest bidder. Assuming the same facts, the courts below have come to opposite conclusions upon the character of the contract and upon the right of the complainant to obtain redress for his alleged wrongs.

It was on account of the general importance of the question and the many lettings for public works by the government and by municipal corporations which are affected by the law relative to bidding, that this court thought it a proper case to issue the writ of certiorari herein. The cases upon the subject are not entirely harmonious, and we think it well to again consider some of them and so far as possible to remove the doubts which seemingly have arisen in this branch of the law.

Looking in the record before us, we find that the pleadings, and proofs taken herein, show that for some time prior to the 6th of March, 1893, the city of Portland intended to add to its water supply by bringing to the city the water from a creek or river called Bull Run, some thirty miles distant, and for that purpose it had issued through its water committee proposals for bids to build the works, which proposals were divided into several different classes as already stated.

The complainant McMullen, living in San Francisco and being a large stockholder in and manager of the San Francisco Bridge Company, came to Portland for the purpose of giving his attention to the matter, and if possible to make an arrangement with the defendant by which they might together become bidders for the work. He and the defendant had many interviews before the time of delivering the bids arrived, and they finally agreed that each party should put in separate bids in his own or his firm name, or in the name of his company, for certain classes of the work, but that they both should have a common interest in each bid if any were accepted. This community of interest was to be kept secret and concealed from all persons, including the water committee. Each was to know the amount of

the other's bid, and all bids were to be put[646] in only after mutual consultation and agreement. Bids for the various classes of work were put in as above set forth, and among them the bid for the manufacture and laying of the pipe, which was accepted by the water committee. All of them were put in pursuant to this agreement, part of them in the name of Hoffman & Bates and part in the name of the San Francisco Bridge Company. The bid in the name of the San Francisco Bridge Company for the manufacture of the pipe was nearly $50,000 higher than the amount bid in the name of Hoffman & Bates, and was put in after consultation with and approval by the defendant. This last bid was put in, as stated by Mr. McMullen in his evidence, as a matter of form only, and to keep the name of his company before the public, but it appeared on its face to be a bona fide bid. The water committee received the bids in ignorance of the existence of this agreement and in the supposition that all the bids which were received were made in good faith, and they all received consideration at the hands of the committee. After the computations were made by which it appeared that the bid of the defendant was the lowest for the manufacture and laying of the pipe, the contract was awarded him, and afterwards that portion of the agreement which had been made between the parties to this combination, viz., that relating to the partnership, was reduced to writing, and is set out in the foregoing statement.

Upon these facts the question arising is whether a contract between the parties themselves, such as is above set forth, is illegal? In order to answer the question we would first naturally ask what is its direct and necessary tendency? Most clearly that it tends to induce the belief that there is really competition between the parties making the different bids, although the truth is that there is no such competition, and that they are in fact united in interest. It would also tend to the belief on the part of the committee receiving the bids that a bona fide bidder, seeking to obtain the contract, regarded the price he named, although much higher than the lowest bid, as a fair one for the purpose of enabling him to realize reasonable profits from its performance. A bid thus made *amounts to a representation that[647] the sum bid is not in truth an unreasonable or too great a sum for the work to be done. We do not mean it is a warranty to that effect or anything of the kind, but simply that a committee receiving such a bid and assuming it to be a bona fide bid would naturally regard it as a representation that the work to be done, with a fair profit, would, in the opinion of the bidder, cost the amount bid. Hence it would almost certainly tend to the belief that the lower bid was not an unreasonably high one, and that it would be unnecessary and improper to reject all the bids and advertise for a new letting. The fact that there were other bids even higher than that of the San Francisco Bridge Company, for the manufacture and laying of the pipes, does not alter the tendency of the agreement, when carried into effect, to create

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