Willoughby, being counsel for Mackall in three cases numbered
2373 and 8118, both against Alfred Richards, and 8038,
Mackall
v. Mackall, respectively, the latter agreed with him, after
reciting the fact that
"in consideration of the services of said W. Willoughby as such
counsel, performed and to be performed, he hereby agreeing to
conduct . . . No. 2373 to a final termination and adjudication by
the court of last resort to the best of his ability as such
counsel, the said Brooke Mackall, Jr., hereby agrees to allow and
pay to him as compensation for such services, in addition to what
has already been received by him, a sum equal to fifty percent of
such money as may be adjudged to the said B. Mackall, Jr., in . . .
No.,8118, by way of mesne profits, damages and costs, provided that
if such fifty percent be less than $5,000, the said W. Willoughby
shall have such sum of $5000, and . . . shall have a lien
Page 167 U. S. 682
therefor upon said judgment and property as may be recovered
against the said Alfred Richards."
The litigation referred to in the agreement related to lot 7, in
square 223 in the City of Washington, on a portion of which the
Palace Market was erected.
Held that the lien thus given
to Willoughby was on all the property that might be recovered in
the three cases.
In May, 1892, Westel Willoughby filed a bill of complaint in the
Supreme Court of the District of Columbia against Brooke Mackall,
the Mutual Fire Insurance Company, Samuel C. Wilson, trustee, and
Leonard Mackall, trustee, and Oliver Thompson, trustee. The
principal object of the bill was to establish an alleged
indebtedness of Brooke Mackall to the complainant, and to charge
such indebtedness on certain land situated in the City of
Washington. To this bill a demurrer was filed on the part of Brooke
Mackall, which was sustained, and a decree was entered that the
bill be dismissed. On appeal to the Court of Appeals of the
District of Columbia at November Term, 1893, the decree of the
Supreme Court of the District was reversed and the cause was
remanded to that court for further proceedings. The other
defendants disclaimed, and proceedings against them were
discontinued, but Brooke Mackall answered and filed a cross-bill.
The cause was put at issue and evidence adduced. On May 29, 1894,
the Supreme Court of the District, upon final hearing, dismissed
the original bill and the cross-bill, but without prejudice to a
certain action at law pending between the parties. On January 24,
1895, a mandate was issued by the Court of Appeals of the District,
reciting that the decree of the Supreme Court of the District had
been reversed, and remanding the cause to that court with
directions to pass a final decree in conformity with the opinion of
the Court of Appeals.
In the Supreme Court of the District, on January 30, 1895, a
final decree was entered adjudging an indebtedness of Brooke
Mackall to the complainant in the sum of $5,000, with interest from
November 24, 1884, and decreeing that the same was a lien upon the
land described in the bill, and that said land be sold, etc. On
February 7, 1895, an appeal was taken from this decree to the Court
of Appeals,
Page 167 U. S. 683
which court, on motion, dismissed said appeal on May 17, 1895. 5
App.D.C. 162.
It appears by the record that on January 23, 1895, the defendant
moved in the Court of Appeals at No. 361, January Term of that
court, for allowance of an appeal from the decree of the Court of
Appeals, entered in January, 1895, to the Supreme Court of the
United States, and this appeal appears to have been allowed on May
3, 1895, and constitutes No. 274, October 7, 1896, of the records
of this Court. An appeal from the decree of the Court of Appeals of
April 23, 1895, 6 App.D.C. 125, dismissing, on motion, the appeal
to that court, was taken on April 23, 1895, and constitutes No.
281, October term, 1896, on the records of this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The vital question depends for its answer on the interpretation
to be given to the contract between the parties. It is in the
following words and figures:
"This agreement, made this 10th day of April, 1883, between
Brooke Mackall, Jr., and Westel Willoughby, witnesseth:"
"That whereas, the said W. Willoughby has been for a
considerable period acting as counsel in the case of
Albert
Richards and others v. Brooke Mackall and others, No. 2,373,
in equity, in the Supreme Court of the District of Columbia, and
which is now pending before the Supreme Court of the United States,
for the defendants in said suit, and whereas, he is counsel for the
plaintiff in the case of
Brooke Mackall, Jr. v. Alfred Richards
and others, in equity, no. 8, 118 in the Supreme Court of the
District of Columbia, and he is also counsel for the defendant in
the case of
Leonard Mackall and others v. Brooke Mackall,
Jr., No. 8,038, in equity, in said court: "
Page 167 U. S. 684
"Now therefore in consideration of the services of said W.
Willoughby as such counsel, performed and to be performed, he
hereby agreeing to conduct the said above-mentioned suit of
Richards and others, No. 2,373, to a final termination and
adjudication by the court of last resort to the best of his ability
as such counsel, the said Brooke Mackall, Jr., hereby agrees to
allow and pay to him, as compensation for such services, in
addition to what has already been received by him, a sum equal to
fifty percent of such money as may be adjudged to the said B.
Mackall, Jr., as aforesaid, and which may be recovered in said suit
of
Brooke Mackall, Jr. v. Richards and others, in equity,
No. 8,118, by way of mesne profits, damages, and costs, provided
that, if such fifty percent be less than $5,000, the said W.
Willoughby shall have such sum of $5,000, and the said W.
Willoughby shall have a lien therefor upon said judgment and
property as may be recovered against the said Alfred Richards, and
the above compensation shall be received by the said W. Willoughby
in full satisfaction for his services in the aforesaid matters in
controversy as counsel, he to have no other compensation for such
services."
"It is provided further that if said causes Nos. 8,038 and 8,118
are not finally determined in the court sitting in special term,
and an appeal is taken, for such services as may be necessary in
appellate courts an additional compensation shall be allowed, which
shall hereafter be agreed upon by the parties, and he shall also be
allowed an additional compensation for services in No. 2,373, which
may be necessary after the decision of the Supreme Court of the
United States upon the points now pending therein."
The construction put upon this agreement by the complainant is
that he was entitled, on performing the services which he thereby
agreed to render, to have a fee of not less than five thousand
dollars, and to have the same declared a lien upon all the property
that may have been recovered in the three cases named in said
agreement as Nos. 2,373, 8,118, and 8,184 on the docket of the
Supreme Court of the District of Columbia, in which he had acted as
counsel for the defendant, Brooke Mackall.
Page 167 U. S. 685
The theory of the defendant is that the compensation, in
addition to what he had already received, was exclusively
contingent upon recovery in cause No. 8,118; that it was to be a
sum equal to fifty percent of such recovery, and that the lien
contemplated was to be upon the property recovered in that cause,
and upon that property only. And he now contends that, as there was
no recovery in No. 8,118, the complainant was entitled to nothing,
and his bill should have been dismissed.
The litigation mentioned and contemplated in the agreement was
over lot 7, in square 223, in the City of Washington. On a portion
of the lot was erected a building known as the "Palace Market." One
Richards, who had furnished material for its construction, filed a
mechanic's lien thereon and on the lot on which it stood. In
proceedings to enforce payment of this lien, a sale was had by the
marshal at which sale Richards became the purchaser. The marshal's
deed to Richards described the property sold as follows:
"Beginning at the northeast corner of said square, and running
thence south forty-four feet; thence westerly to the west end of
the lot; thence in a northerly direction with the west line thereof
to the north line of said lot; then with said northerly line to the
place of beginning."
Cause No. 2,373 was a bill filed by creditors of Mackall,
including Richards, seeking to subject to sale for the satisfaction
of their judgments all of the lot No. 7 not before sold by the
marshal of the District to Richards, and asserting that Mackall had
such an interest therein as rendered it liable to the satisfaction
of such judgments. On May 1, 1873, the court adjudged and decreed
as follows:
"That the title to said real estate in the proceedings in the
said cause mentioned -- that is to say, to all of lot numbered
seven, in square numbered two hundred and twenty-three, in the City
of Washington, not heretofore sold by the marshal of the District
of Columbia to the complainant Alfred Richards -- is vested in the
defendant, Brooke Mackall, Jr.,"
and appointed trustees to sell the same. Upon exceptions to the
sale and report thereof by the trustees, the court sustained the
exceptions on the ground of the imperfect
Page 167 U. S. 686
description of the property to be sold, and subsequently
directed another sale of
"all that portion of lot seven, in square 223, in the City of
Washington, lying south of a line drawn from a point on the line of
Fourteenth Street, northwest, westwardly and parallel with New York
Avenue, to the west line of the said lot seven. This order is made
without passing upon the validity of the said marshal's sale."
These exceptions were filed on behalf of Mackall by Willoughby.
From the decree of the general term affirming this decree of sale
an appeal was taken to this Court, where it was held that the part
sold to Richards in the mechanic's lien proceedings was only the
part of the lot upon which the Palace Market stood.
112 U. S. 112 U.S.
369.
Upon this decision, Mackall paid the judgment creditors, and
there was no sale of any part of the lot to satisfy them. The
result, therefore, of case No. 2,373 was that Richards' title,
derived from his purchase under the mechanic's lien proceedings,
was restricted to the Palace Market and that portion of the lot on
which it stood, and that Mackall's title was affirmed to the rest
of the lot.
In the meantime, on April 11, 1882, cause No. 8,118 had been
instituted. It was a suit in equity, the object of which was to
recover possession of that part of lot 7 which had been sold to
Richards by the marshal in 1870, and also to recover the mesne
profits while Richards had been in possession. The court below in
special term dismissed the bill, but that decree was reversed in
general term, the sale and conveyance by the marshal to Richards
being set aside as void and of no effect. As between the parties to
the suit, Mackall was declared to be the owner of the property,
with a right to have the legal title conveyed to him upon his
paying Richards' claim as judgment creditor, as well as his
disbursements in connection with said premises. The ground upon
which the general term proceeded was that, on account of the
ambiguity and uncertainty in the description of the property, both
in the advertisement and in the marshal's deed, the sale could not
be sustained.
Mackall v. Richards, 2 Mackey 271.
From this decree an appeal was taken to this Court, by
Page 167 U. S. 687
which on January 9, 1888, the decree below was reversed and the
cause remanded with directions to dismiss the bill, the court
holding that the complainant was guilty of laches, and refusing
relief on that ground alone.
Richards v. Mackall,
124 U. S. 183.
It appears that, after the decision of this Court in
112 U. S. 112 U.S.
369, restricting Richards' title to that portion of the lot on
which the Palace Market stood, Richards regarded that decision as
final, and abandoned all claim except to that part of the lot
actually occupied by that building, and that Mackall took and
remained in possession ever since.
Upon this state of facts, the Court of Appeals interpreted the
agreement as providing that Willoughby was to receive a fee of not
less than $5,000, and to have the same declared a lien upon all the
property recovered in the cases named in the agreement, and in
which he had acted as counsel for Mackall.
The conclusion of that court was thus expressed:
"Whilst Willoughby's right to a fee for all this litigation is
not now denied, it is contended that his lien therefor is limited
to such property as was actually recovered, and cannot attach to
this lot or any part of it, because it was not actually recovered
in any of said suits, the only suit for actual recovery being No.
8,118 aforesaid, which was defeated, as we have seen. We think that
the word 'recovered' should not be so restricted in its meaning.
There is no reason why the agreement should not be liberally
construed. Its object was to give Willoughby a lien on the property
which might be recovered -- that is to say, secured or realized --
by and through the litigation conducted by him, offensive and
defensive. Richards, recognizing, as he was bound to do, that the
title to the lot, outside the walls of the building, had been
settled adversely to his claim, abandoned any possession he might
have had and submitted it to Mackall. Mackall entered without
opposition, and has since held peaceable, undisturbed, and
unquestioned possession. In the general sense of the word, he
actually recovered his land through the services
Page 167 U. S. 688
rendered by Willoughby in cause No. 2,373. He failed of recovery
in 8,118, through which he lost the title to the Palace Market lot,
and Willoughby the contingent interest in the mesne profits
expected to be recovered therein, in addition to the land.
Willoughby's fee to the extent of the $5,000 claimed was not
contingent, but certain and fixed. Having as a matter of fact,
through success in No. 2,373, settled the title to a very valuable
part of the lot, and enabled Mackall to retake peaceable possession
thereof without further litigation necessary to assure him therein,
we think his lien attached thereto under the construction of his
contract declared on the former appeal, and which is adhered
to."
We have not overlooked the ingenious argument of the counsel for
the appellant, based on the phraseology of a prior agreement, and
on statements of the briefs filed on behalf of Mackall, in the case
of
Richards v. Mackall. but even if it were open for us to
regard those papers, we do not perceive that they clearly point to
a different construction of the present agreement than that
imported by its own terms.
Upon the whole, we accept the interpretation put upon the
contract by the Court of Appeals as a reasonable one, and the
decree of the Court of Appeals is
Affirmed.
