Mackall v. Willoughby

• Decision Date: 24 May 1897
• Docket Number: Nos. 274,281,s. 274
• Citation: 17 S.Ct. 954,42 L.Ed. 323,167 U.S. 681
• Parties: MACKALL v. WILLOUGHBY
• Court: U.S. Supreme Court

167 U.S. 681

17 S.Ct. 954

42 L.Ed. 323

MACKALL

v WILLOUGHBY.

Nos. 274, 281.

May 24, 1897.

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 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.

Henry E. Davis, for appellant.

A. A. Birney, for appellee.

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:

'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 per cent. 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 per cent. 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.

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 50 per cent. 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...