1. Pleading over to a declaration adjudged good on demurrer is a
waiver of the demurrer.
2. The pendency of a prior suit in a state court is not a bar to
a suit in a circuit court of the United States, or in the Supreme
Court of the District of Columbia, by the same plaintiff against
the same defendant' for the same cause of action.
3. Writs of error from this Court to the Supreme Court of the
District of Columbia are governed by the same rules and regulations
as are those to the circuit courts. When, therefore, the record
shows that an exception was taken and reserved at the trial, it is
not necessary that the bill of exceptions be drawn out in form, and
signed or sealed by the judge, before the jury retires, but it may
be so signed or sealed at a later period, and, when filed
nunc
pro tunc, brings the case within the settled practice of
courts of error.
4. An agreement to pay a contingent compensation for
professional services of a legitimate character, in prosecuting a
claim against the United States pending in one of the executive
departments, is not in violation of law of public policy.
5. Where the amount of compensation to be paid was not fixed,
evidence of what is ordinarily charged by attorneys at law in cases
of the same character is admissible.
On the 13th of January, 1872, the plaintiff below, administrator
of Robert J. Atkinson, filed his declaration claiming from the
defendants $10,000 with interest from May 1, 1871, for services
alleged to have been performed by the deceased in
Page 93 U. S. 549
prosecuting a claim in their behalf against the United States
before the Third Auditor of the Treasury from 1865 to Feb. 3, 1870,
and subsequently by himself, as administrator, before the Secretary
and other officials of the Treasury Department.
The defendants pleaded in abatement the pendency of a suit
against them, by the same plaintiff and for the same cause of
action, in the Superior Court of the County of New London in the
State of Connecticut, to which plea the plaintiff demurred. The
court sustained the demurrer, and granted the defendants leave to
plead over, whereupon they pleaded the general issue.
The defendants were the owners of certain steamers which were
used by the United States during the war of the rebellion at New
Orleans, La., and for which use they had a claim for compensation
to the amount of $45,925.07. Atkinson prosecuted it until it was
allowed by the accounting officers and a settlement made. He died
before the warrant for the money was issued to the defendants. His
services were rendered upon a contract for a contingent
remuneration, the amount of which was not fixed. Attorneys
prosecuting such claims before the departments usually charged
contingent fees of from twenty to twenty-five percent, which the
plaintiff's witnesses regarded as a reasonable charge. Atkinson,
who was at one time Third Auditor of the Treasury, was conversant
with the rules of the Treasury Department, and, as sole attorney,
rendered services in this case, by preparing and filing printed
briefs.
Several prayers for instructions to the jury were presented by
the defendants, but the court refused them all, and charged
substantially as follows:
"Where an attorney, in the exercise of his ordinary labor and
calling, and with the instrumentalities of his professional
learning and industry, undertakes to work out a desired result for
his client, not through personal influence, but through the
instrumentalities of the law -- by persuasion, as distinguished
from influence -- such an undertaking is not an unlawful one, or
contrary to public policy. That in dealing with the government and
its departments, there is frequently and necessarily required a
degree of knowledge and skill, and an acquaintance with forms and
principles, not possessed by the unlettered citizen, before a
person can obtain that which is justly his due.
Page 93 U. S. 550
When, therefore, the class of persons possessing such knowledge
perform that labor as attorneys, no reason exists for defeating
them of their compensation. If, therefore, Atkinson's employment
was that of a professional man in the line of his profession, and
not for the purpose of exercising and wielding an undue influence
over the administrative officers of the government, and was so
engaged by the defendants, the plaintiff is entitled to recover.
That in the absence of any special agreement between the parties as
to the amount of his compensation, the law presumes that his reward
shall be commensurate with his labor; and, although the percentage
or amount which other attorneys have received in similar cases
cannot alone govern in this, it is proper to be considered in
determining what the intestate's reasonable compensation should be,
and that if they found that the claim was satisfied through the
efforts of the deceased, and not those of others, the fact that his
death occurred a day or two before the claim was paid does not
deprive him of the fruit of his labor."
On the 13th of March, 1873, the jury rendered a verdict for the
plaintiff for $9,185.18.
Thereupon the defendants moved for a new trial, which motion was
overruled on the nineteenth of that month.
May 3, 1873, the bill of exceptions was signed by the presiding
justice, and filed
nunc pro tunc Aug. 13, 1874.
Sept. 29, 1873, the motion for new trial was heard at the
general term of the court on appeal. The decision of the special
term was affirmed, and judgment rendered on the verdict of the
jury.
The defendants thereupon sued out this writ of error.
Mr. Thomas J. Durant for the plaintiffs in error.
Page 93 U. S. 552
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Services were rendered by Robert J. Atkinson, in his lifetime,
as attorney for the defendants in prosecuting a claim, in their
behalf, against the United States, before the accounting
Page 93 U. S. 553
officers of the Treasury Department, and the plaintiff
instituted the present suit in the Supreme Court of the District to
recover compensation for those services, including a claim for
services rendered by the decedent and by himself, as such
administrator, in the same case, since the decease of the
intestate.
Process was served; and the defendants appeared and pleaded in
abatement the pendency of a prior suit in a state court for the
same cause of action, and tendered a certified copy of the prior
writ and return in support of the plea; to which the plaintiff
demurred, and assigned for cause that the pendency of a prior suit
in a state court is no stay or bar to a suit in the court below.
Hearing was had, and the court sustained the demurrer of the
plaintiff, and gave leave to the defendants to plead to the
merits.
Pursuant to that leave, the defendants pleaded
nil
debet and
non assumpsit, upon which issues were duly
joined. Subsequently the parties went to trial, and verdict and
judgment were for the plaintiff, in the sum of $9,185.18.
Exceptions to the rulings and instructions of the court, and to the
refusals of the court to instruct the jury as requested, were filed
by the defendants, and they sued out a writ of error, and removed
the cause into this Court.
Ten errors are assigned by the plaintiffs in error, but, in the
view taken of the case, it will not be necessary to give them a
separate examination.
Two questions are presented, arising out of the ruling of the
court in sustaining the demurrer of the plaintiff below to the plea
in abatement filed by the defendants:
1. Whether the defendants did or did not waive the demurrer, by
subsequently pleading to the merits.
2. Whether the pendency of a prior suit in a state court is a
bar to an action subsequently commenced in the Supreme Court of
this District.
Authorities are referred to by the defendant in error, which
support the proposition that pleading over to a declaration
adjudged good on demurrer is a waiver of the demurrer; and there
are many other decided cases to the same effect.
Aurora
City v. West, 7 Wall. 92;
Bell
v. Railroad, 4 Wall. 602;
Clearwater v.
Meredith, 1 Wall. 42;
United
States v. Boyd, 5 How. 51;
Evans v.
Gee, 11 Pet. 85;
Jones v. Thompson, 6 Hill
621.
Page 93 U. S. 554
Suppose it were otherwise, still it is insisted by the defendant
in error that the pendency of a prior suit in another jurisdiction
is not a bar to a subsequent suit in a circuit court or in the
court below, even though the two suits are for the same cause of
action, and the Court here concurs in that proposition.
Repeated attempts to maintain the negative of that proposition
have been made, and it must be admitted that such attempts have
been successful in a few jurisdictions; but the great weight of
authority is the other way.
Bowne v. Joy, 9 Johns. 221;
Hatch v. Spofford, 22 Conn. 497;
Maule v. Murray,
7 Term 466;
Imlay v. Ellefsen, 2 East 457;
Colt v.
Partridge, 7 Met. 572;
Smith v. Lathrop, 44 Penn.St.
328;
Cox v. Mitchel, 7 C.B.N.S. 55;
Wood v. Lake,
13 Wis. 91;
Wadleigh v. Veasie, 3 Sumn. 167;
Loring v.
Marsh, 2 Cliff. 322;
White v. Whitman, 1 Curt. 494;
Salmon v. Wotten, 9 Dana 422;
Yelverton v.
Conant, 18 N.H. 124;
Walsh v. Durkin, 12 Johns. 99;
Davis v. Morton, 4 Bush 444.
Attempt is also made by the defendant in error to maintain the
proposition that the allowance of the bill of exceptions is
irregular, and that the assignment of errors founded thereon is not
properly before the court for reexamination, but the court here is
entirely of a different opinion. Due attention to the act
reorganizing the courts of the District will remove all doubt upon
the subject. 12 Stat. 764.
Provision is made for exceptions to be taken in the trial at the
special term, before a single justice. As there provided,
exceptions may be reduced to writing at the time, or they may be
entered in the minutes of the justice, and settled afterwards, in
such manner as the rules of the court provide. Such exceptions must
be
"stated in writing, in a case or bill of exceptions, with so
much of the evidence as may be material to the questions; but the
case or bill of exceptions need not be signed or sealed."
Sec. 8.
Special regulations are also enacted in respect to motions for
new trials, and it is provided that a motion for new trial on a
case or bill of exceptions shall be heard, in the first instance,
at a general term. Appeals and writs of error to this Court are
regulated by the eleventh section of the act. Writs of error and
appeal, under the prior law, applicable to the District, were
Page 93 U. S. 555
required to be prosecuted in the same manner and under the same
regulations as in case of writs of error and appeals from judgments
and decrees rendered in the circuit courts of the United States. 2
Stat. 106;
United States v.
Hooe, 1 Cranch 318.
Important changes were undoubtedly made by the act reorganizing
the courts of the District, but the eleventh section provides that
any final judgment, order, or decree of said court may be
reexamined and reversed or affirmed in the Supreme Court of the
United States upon writ of error or appeal, in the same cases and
in like manner as is now provided by law in reference to the final
judgments, orders, and decrees of the Circuit Court of the United
States for the District of Columbia. 12 Stat. 764.
Grant that and it follows that writs of error from this Court to
the courts of this District are governed by the same rules and
regulations as are writs of error from this Court to the circuit
courts of the United States.
Thompson v.
Riggs, 5 Wall. 676;
Pomeroy's Lessee v. Bank
of Indiana, 1 Wall. 597.
Unless the exceptions to the rulings of the court in the
progress of the trial, or to the instructions of the court given to
the jury, are signed by the judge or sealed with his seal, it is
not a bill of exceptions within the meaning of the statute
authorizing such proceeding, nor does it become a part of the
record. Instead of that, the established rule is that the exception
must show that it was taken and reserved by the party at the trial;
but it may be drawn out in form, and signed or sealed by the judge
at a later period.
United States v.
Breitling, 20 How. 254.
Decided cases to that effect are very numerous; nor would it be
difficult to show that the practice in that regard has been uniform
ever since the statute allowing bills of exception was passed by
Parliament.
Phelps v.
Mayer, 15 How. 160;
Turner
v. Yates, 16 How. 28.
Anciently the bill of exceptions was required to be sealed, but
it is sufficient in the practice of this Court if it be signed by
the judge, as it was in the case before the Court.
Pomeroy's Lessee v.
Bank, 1 Wall. 599;
Generes v.
Campbell, 11 How. 193;
Mussina v.
Cavazos, 6 How. 355.
Beyond doubt, the record must show expressly or impliedly that
the exception was taken and reserved by the party at the
Page 93 U. S. 556
trial; but it is a mistake to suppose that it has ever been
decided by this Court that it must be drawn out and signed or
sealed by the judge before the jury retire from the bar. Manifest
inconvenience would result from such a requirement, and, in point
of fact, there is no such rule. On the contrary, it is always
allowable, if the exception is seasonably taken and reserved, that
it may afterwards be put in form and filed in the case, pursuant to
the order and direction of the judge who presided at the trial.
Dredge v.
Forsyth, 2 Black 568.
Apply that rule to the case before the Court and it is clear
that the objection of the defendant in error is without merit, as
it appears by the record that the exceptions were "taken at the
trial of the cause," and that the bill of exceptions was signed by
the judge at the request of the defendants, and filed in the case
nunc pro tunc, which brings the case within the settled
practice of courts of error, even if governed by the strictest
rules of the common law.
Coming to the merits, the first objection of the plaintiffs in
error is that the contract set up in declaration is one for a
contingent compensation. Such a defense, in some jurisdictions
would be a good one but the settled rule of law in this Court is
the other way. Reported cases to that effect show that the
proposition is one beyond legitimate controversy.
Wylie v.
Coxe, 15 How. 415;
Wright v. Tebbitts,
91 U. S. 252.
Professional services were rendered by an attorney, in the first
case cited, in prosecuting a claim against the Republic of Mexico
under a contract that the attorney was to receive five percent of
the amount recovered. Valuable services were rendered by the
attorney during the lifetime of the claimant, but he died before
the claim was allowed. Subsequently the efforts of the attorney
were successful, and he demanded the fulfillment of the contract,
which was refused by the administrator of the decedent. Payment
being refused, the attorney brought suit, and this Court held that
the decease of the owner of the claim did not dissolve the
contract, that the claim remained a lien upon the money when
recovered, and that a court of equity would exercise jurisdiction
to enforce the lien if it appeared that equity could give him a
more adequate remedy than he could obtain in a court of law.
Page 93 U. S. 557
Courts of law also adopt the same rule of decision, as
sufficiently appears from the second case cited, where the same
rule of decision was applied and enforced without hesitation or
qualification. Contracts for lobbying stand upon a very different
footing, as was clearly shown by the Chief Justice in commenting
upon a prior decision in which the opinion was given by Justice
Swayne. Trist v. Child, 21 Wall. 450.
Nothing need be added to what is exhibited in the case last
mentioned to point out the distinction between professional
services of a legitimate character and a contract for an employment
to improperly influence public agents in the performance of their
public duties.
Tool Company v.
Norris, 2 Wall. 53.
Professional services to prepare and advocate just claims for
compensation are as legitimate as services rendered in court in
arguing a cause to convince a court or jury that the claim
presented or the defense set up against a claim presented by the
other party ought to be allowed or rejected. Parties in such cases
require advocates, and the legal profession must have a right to
accept such employment and to receive compensation for their
services; nor can courts of justice adjudge such contracts illegal
if they are free from any taint of fraud, misrepresentation, or
unfairness.
By the contract in question, the amount of compensation to be
paid was not fixed, and in order to enable the jury to determine
what the plaintiff was equitably entitled to recover, he called
other attorneys, and proved what is ordinarily charged in such
cases, and the defendants excepted to the ruling of the court, in
refusing to charge the jury that they should disregard such
testimony.
Attorneys and solicitors are entitled to have allowed to them,
for their professional services, what they reasonably deserve to
have for the same, having due reference to the nature of the
service and their own standing in the profession for learning,
skill, and proficiency, and, for the purpose of aiding the jury in
determining that matter, it is proper to receive evidence as to the
price usually charged and received for similar services by other
persons of the same profession practicing in the same court.
Vilas v. Downer, 21 Vt. 419.
Tested by that rule, the Court is of the opinion that the
Page 93 U. S. 558
prayer for instruction was properly refused. Certain other
prayers for instructions were also presented by the defendants,
which were refused by the court below; but in the view taken of the
case, it must suffice to say that we are all of the opinion that
the ruling of the court in refusing to give the requested
instructions was correct.
Enough has already been remarked to show that the theory of the
plaintiffs in error that the contract is prohibited by certain acts
of Congress referred to cannot be sustained, for the reason that
the contract was a legitimate one for professional services of an
attorney who held no official station at the time the contract was
made, nor at any time during the period he was engaged in
prosecuting the claim.
Exceptions were also taken to numerous detached portions of the
charge of the court; but the remarks already made render it
unnecessary to give those exceptions a separate examination. Such
an examination would extend the opinion unnecessarily; nor is it
necessary, as the Court is unanimously of the opinion that the
exceptions must all be overruled.
Judgment affirmed.
