(concurring in result).
While I do not disagree that the contract between McKellips and Mackintosh violates public policy and is therefore unenforceable (SDCL 53-9-1), I do not believe this court needs to dredge up antiquated common-law doctrines such as “champerty and maintenance” in order to make this conclusion. Modern contract law reaches the same conclusion.
This action was originally brought for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, conversion, fraud, constructive fraud, and constructive trust. Appellees answered, alleging that McKel-lips’ claim was “unconscionable, illegal and void as against public policy.” Certainly existing contract law could have adequately addressed McKellips’ claim.
For example, SDCL 53-9-1 states: “A contract provision contrary to an express provision of law or to the policy of express law, though not expressly prohibited or otherwise contrary to good morals, is unlawful.”
In State ex rel. Meierhenry v. Spiegel, Inc., 277 N.W.2d 298, 300 (S.D.1979), we said: “Public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good.”
The test is “the evil tendency of the contract, and not its actual injury to the public in a particular instance.... The law looks to the general tendency of such agreements, and it closes the doors to temptations by refusing them recognition in any of its courts.” Schurr v. Weaver, 74 S.D. 378, 483, 53 N.W.2d 290, 293 (1952).
In Hunt v. Hunt, 309 N.W.2d 818, 822 (S.D.1981), we noted: “To maintain antiquated rules and methods merely for the sake of consistency is akin to secluding oneself from an often volatile world.”
The precedent in South Dakota recognizing champerty and maintenance is minimal at best. See Hudson v. Sheafe, 41 S.D. 475, 484, 171 N.W. 320, 322 (1919); Bottum v. Herr, 83 S.D. 542, 162 N.W.2d 880 (1968). Moreover, the only South Dakota decisions recognizing the doctrine of cham-perty involve claims assigned to attorneys or interpreting a statute on grants of real property.
Based on our prior decisions, I would find that McKellips’ contract with Mackintosh was contrary to public policy and as a result void.
I am authorized to state that Justice WUEST joins in this concurrence in result.