APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE SHIRAS, after stating the case, 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. 2373, 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. 8118 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. 8038, 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. 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 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. 8118, by way of mesne profits, damages and costs, provided, that if such fifty per cent be less than $5000, the said W. Willoughby shall have such sum of $5000, 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. 8038 and 8118, 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. 2373, 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. 2373, 8118 and 8038 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. 8118; that it was to be a sum equal to fifty 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. 8118, 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. 2373 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 sever, 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 ...