A contract between attorneys for division of fees construed
according to the definite meaning therein expressed.
Quaere whether evidence to prove that there was a
condition precedent to be performed before a contract took effect
is admissible without a cross-bill.
Under a contract by attorneys for division of fees, if the
attorney claiming did any work, whether more or less, there is no
failure of consideration.
Where an agreement to leave a dispute as to amounts due under a
contract to certain third parties provides that, in case of their
refusal to act, no rights are affected, it is not permissible after
such a refusal to bring in an attempt of another tribunal to
adjudicate the claim.
The decision of a court that has no jurisdiction of the subject
matter or the parties is not
res judicata.
An act of Congress directing the Court of Claims to determine
the amount due attorneys for fees in an Indian litigation to be
apportioned by certain attorneys named amongst all entitled to
share as agreed among themselves concerns only the amount, and not
the manner of distribution,
United States v. Dalcour,
203 U. S. 408, and
so held as to the Act of June 21, 1906, c. 3504, 34 Stat. 325.
In this case, a contract between two attorneys agreeing to share
equally all fees received from an Indian litigation
held
not to have been superseded by a decision that one was entitled to
a much larger share than the other made by the Court of Claims
under authority of an act of Congress authorizing it to determine
the total amount due to all attorneys.
34 App.D.C. 539 reversed.
The facts, which involve the construction of a contract between
attorneys for division of fees, are stated in the opinion.
Page 226 U. S. 312
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit upon the following contract:
"March 28, 1906"
"This agreement made between F. C. Robertson and Hugh H. Gordon
witnesseth that they shall share equally in all monies appropriated
by Congress, or allowed by the Interior Department, which may
accrue to said Gordon or said Robertson as attorney fees, growing
out of the rendition of services to the Colville tribe of Indians,
whether allowed under the Maish-Gordon contract with said tribes or
on any other theory whatsoever, which said interest is to inure to
either party no matter in whose name such allowance is made. Both
parties hereto to mutually labor to secure such allowance. Out of
said Robertson's share he agrees to compensate R. D. Gwydir by a
reasonable compensation. The fees to be divided between said
Robertson and said Gordon, as herein provided, shall be the net sum
accruing to said Gordon, after settling with other attorneys under
contracts heretofore made by said Gordon."
"F. C. ROBERTSON"
"HUGH H. GORDON"
There is also a claim upon a receipt signed by Gordon for $150,
given by Robertson to Gordon
"with which to pay expenses of trip to Washington, District of
Columbia, to look after the interests of Gordon, Gwydir &
Robertson in the matter of the claim of the Indians of the Colville
Reservation against the U.S. government. In case we succeed in
collecting said claim, I agree that out of my share of the
Page 226 U. S. 313
profits, I will repay to said Robertson the said $150."
This was dated March 21, 1906, a few days earlier than the one
first set forth.
By an Act of June 21, 1906, c. 3504, 34 Stat. 325, 377, 378, a
million and a half dollars were set aside by Congress for payment
to the Indians in respect of the matter as to which the contract
contemplated that services would be rendered to them. This statute
also gave jurisdiction to the Court of Claims to render a judgment
in favor of Butler and Vale, attorneys, for all services by all
lawyers to the Indians, the amount to be paid out of the fund and
to be apportioned among such lawyers by agreement among themselves.
One-fifth of the fund was paid over to the Indians under an Act of
March 1, 1907, 34 Stat. 1015, c. 2285. By an Act of April 30, 1908,
c. 153, 35 Stat. 70, 96, another fifth was directed to be paid over
in pursuance of the statute of 1906. Meantime, Butler and Vale had
brought their suit in the Court of Claims, and on May 25, 1908, the
court gave judgment for a total of $60,000 of which it undertook to
apportion $14,000 to Gordon and $2,000 to the plaintiff and
appellant. 43 Ct.Cl. 497, 525. Thereafter, in August, 1908, this
bill was filed to secure payment out of the Indian fund, and to
establish the plaintiff's right to an equal share in the amount
allotted to Gordon, and a lien upon that amount for such share and
for the $150 additional advanced as above set forth.
The controversy is wholly between Robertson and Gordon, and it
is unnecessary to refer to the other parties or other aspects of
the case. The Maish-Gordon contract with the Indians had expired at
the time of the agreement in suit, and one of the defenses is that
the agreement was made upon the implied understanding and condition
that Robertson should get a new contract with the Indians, which
never came to pass. The other defenses are that the matter is
concluded by the judgment of the Court of
Page 226 U. S. 314
Claims, and that the agreement was superseded by two other
agreements of a little later date, made when the matter of an
appropriation for the Indians was pending in Congress. The first of
these, dated April 3, 1906, and signed by Gordon, Robertson,
Butler, and Vale, was that the parties would submit to the
conference committee of the Senate and House their respective
claims for services, on a
quantum meruit, and would abide
by any award that should be made, "and in case no award shall be
made, the rights of the said parties shall remain unaffected." The
second agreement, dated April 12, 1906, between Marion Butler and
R. W. Nuzum, each on behalf of himself and others not named, and
Gordon and Robertson, was that, provided the sum of $150,000 was
allowed for payment of attorneys representing the Indians, $18,750
should be paid to Nuzum, $9,375 to Gordon, and $9,375 to Robertson,
the remainder to be distributed by Butler as he elected.
"Should the appropriation be less, then this agreement is to be
the basis of distribution, sharing
pro rata in such
diminished sum, as the percentage is thereby diminished."
Both of the last two defenses seem to have been sustained by the
Court of Appeals. 34 App.D.C. 539.
See, for details not
material here,
Butler v. Indian Protective Association, 34
App.D.C. 284;
Gordon v. Gwydir, 34 App.D.C. 508.
We are of opinion that the decree must be reversed and that the
plaintiff is entitled to prevail. He starts with a contract of
definite meaning. We perceive no ground for the doubt suggested in
the court of first instance whether this agreement applies to a sum
allowed by the Court of Claims. That court merely rendered certain
the amount appropriated in terms by Congress out of the Indian
fund. The argument that there was a condition precedent that a new
contract should be made with the Indians, although no doubt such a
contract was hoped and worked for, is irreconcilable with the
instrument as it stands, and appears
Page 226 U. S. 315
to us not to be supported by the evidence, if that evidence were
admissible without even a cross-bill.
Sprigg v.
Bank of Mt. Pleasant, 14 Pet. 201,
39 U. S. 206;
Brown v. Slee, 103 U. S. 828;
Simpson v. United States, 172 U.
S. 372. Again, there is no doubt that Robertson did some
work, whether more or less does not matter, so that there was no
failure of consideration, according to the common rather inaccurate
phrase. The only questions, then, are those concerning the effect
of the later contracts and the decree of the Court of Claims.
The contract of April 3, proposing to submit all claims to the
conference committee of the Senate and the House, came to nothing,
because the parties were informed that the committee would not
undertake to settle disputes between lawyers. By the express terms
of this instrument, therefore, no rights were affected. It appears
to us wholly unpermissible to bring in the subsequent attempt of
the Court of Claims to adjudicate on a
quantum meruit
under an act of Congress that had not then been passed, as
satisfying the conditions of the contract, and binding the parties
by virtue of the agreement, if not by its own proper force.
The second contract was not made until nine days later -- not
improbably on the footing that the attempt of April 3 had failed.
This contemplated a fixing of the attorney's fees by Congress --
again a different course from that taken by events. We see no
reason for supposing that it was intended to change the relations
between Robertson and Gordon. Primarily they were on one side of
the agreement against Butler and associates on the other.
Secondarily they were recognized as entitled to equal shares.
Neither do we see reason for connecting this with the contract of
April 3, as alternatively intended to cover the whole ground and to
supersede that of March 28 in suit. These later contracts were on
their face successive; the earlier one applied only to an event
that has
Page 226 U. S. 316
not happened, and the latter, if applicable in any degree, does
not help the defendants' case. It is not to be supposed that it
tacitly overrode the agreements of the parties in March to pay
certain other lawyers out of their respective shares, and if not,
the March contract remained on foot.
Finally, as to the defense of
res judicata, the short
answer is that the Court of Claims had no jurisdiction of either
the subject matter or the parties. Of course, jurisdiction could
not be claimed unless the special act of June 21, 1906, heretofore
mentioned, conferred it. That act authorized the court to
"render final judgment in the name of Butler and Vale . . . for
the amount of compensation which shall be paid to the attorneys who
have performed services as counsel on behalf of said Indians in the
prosecution of the claim of said Indians for payment for said land,
and in determining the amount of compensation for such services the
court may consider all contracts or agreements heretofore entered
into by said Indians with attorneys who have represented them in
the prosecution of said claim, and also all services rendered by
said attorneys for said Indians in the matter of said claim."
It then directed that Butler and Vale should file a petition,
and that the Secretary of the Treasury should pay them the sum
awarded on final judgment out of the sum appropriated for the
Indians; payment to be in full compensation of all attorneys who
had rendered services to the Indians in the matter, "the same to be
apportioned among said attorneys by said Butler and Vale as agreed
among themselves," provided that, before any attorney having an
agreement with Butler and Vale should be paid, he should deliver to
the Secretary of the Interior a discharge of all demands for
services in the matter of this Indian claim.
Argument hardly can make the intent of the statute clearer. The
question before the Court of Claims was the
Page 226 U. S. 317
amount and the whole amount to be deducted from an Indian
appropriation before it should be paid over for the Indians by the
United States. That necessarily concerned the United States. The
manner in which the fund should be distributed did not concern it
at all. Therefore it selected representatives of all claimants
against the fund, ordered the sum deducted to be paid to them, and
transferred all claims outstanding against the Indians to the sum
so paid over -- a method familiar to our legislation.
United
States v. Dalcour, 203 U. S. 408,
203 U. S. 422.
The reference to contracts with the Indians merely permitted the
court to take them into consideration in determining what was a
fair total, without being governed by them; as, for instance, the
expired Butler and Vale contract, which allowed ten percent, and to
the same end other services were to be taken into account. But the
act itself determined what parties were to be before the court,
namely, Butler and Vale, they being the only ones necessary for the
object in view. The plaintiff could not have made himself a party
if he had wanted to, and he did not want to and did not -- he
rightly understood that his claim was to be satisfied outside of
the suit before the court. We do not think a discussion of the
evidence necessary, although we think that the courts below mistook
its effect. It is enough to say that the decree of the Court of
Claims perhaps was not intended to have effect, and certainly could
not have effect, in deciding the rights of the parties among
themselves.
Decree reversed.
MR. JUSTICE PITNEY was not present at the argument, and took no
part in the decision of this case.