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commenced a proceeding March 29, 1899, in the county court for Richardson county to set aside the probate of the Rulo will, and to probate a will alleged to have been executed by Stephen B. Miles, in 1897, in 1897, described as the "St. Louis will." Twelve days after the St. Louis will had been offered for probate, Joseph H. Miles, defendant herein, engaged attorneys, including Edwin Falloon, by written contract, in the following form:

This agreement, made this 10th day of April, 1899, between Joseph H. Miles, of the first part, and Clarence Gillespie, Francis Martin, and Edwin Falloon, of the second part,


Said Joseph H. Miles hereby employs said Martin, Gillespie, & Falloon as his attorneys to defend his interests in certain litigation now pending in the county court of Richardson county, Nebraska, concerning the probate of the will of Stephen B. Miles, deceased, and in consideration of the services of said parties of the second part said party of the first part agrees to pay the sums and amounts following, to wit:

For the trial of said cause in the county and district courts of said county the sum of six thousand dollars ($6,000), to be paid as follows: Fifteen hundred dollars ($1,500) cash, and on the entry of the judgment of said county court fifteen hundred dollars ($1,500) additional. If said cause goes no further, then the additional sum of three thousand dollars ($3,000), making six thousand dollars in all. But if said cause is appealed or taken to the district court, said second sum of three thousand dollars ($3,000) shall be paid as follows: $1,500 upon the termination of said cause in the district court, and in the event of said cause being taken to the supreme court of Nebraska, the remaining $1,500 at its termination. If said cause shall be taken by either party to the litigation to the supreme court of Nebraska, then said Miles shall pay said attorneys the further sum of $9,000, making

in all $15,000: Provided, however, if said Miles shall be eventually unsuccessful in said supreme court, the fees for services in said supreme court shall be $1,500, or $7,500 in all of said courts. In case said cause shall be removed to the inferior Federal courts and there terminated successfully in favor of Miles, the fees shall be $15,000, or if terminated there unsuccessfully, the fees shall be $7,500. If said cause shall be taken to the United States Supreme Court the fees shall be $5,000 additional, or $20,000 in all, in the event of success, and in the event of failure $10,000 in all. Miles agrees to pay all costs and In addition to the above, the said necessary expenses in any event.

Said parties of the second part hereby accept said employment on said terms, agree to divide all fees equally and to give all matters connected with said litigation their best care, skill, and ability, and at all times to protect the interests of said Miles.

This contract also binds the parties to continue in the management of said matters to the end in all courts, if the same shall be reversed by any inferior court. This employment includes and comprehends without additional fees the litigation concerning the claim of Mead to the one sixteenth of said estate.

Witness our hands the day and year last above written.

J. H. Miles.
Clarence Gillespie.
Francis Martin.
Edwin Falloon.

Were the services for which compensation is sought herein performed by Edwin Falloon, plaintiff, under the contract quoted? The St. Louis will was rejected in the county court, in the district court on appeal from the county court, and in the supreme court on appeal from the district court. The judgment of the district court for Richardson county in favor of defendant herein, rejecting the St. Louis will and refusing to set aside the order probating the

(— Neb. —, 170 N. W. 191.)

Rulo will, was affirmed in the supreme court April 9, 1903. Williams v. Miles, 68 Neb. 463, 62 L.R.A. 383, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W. 151, 4 Ann. Cas. 306. The position of plaintiff herein is that his services under the written contract were then completed, that he had then earned one third of the stipulated compensation, or $5,000, and that he is entitled to additional compensation for subsequent services performed by him for defendant in other proceedings described as follows:

While the appeal of the heirs at law was pending in the supreme court, they filed in the district court for Richardson county, from which the appeal last mentioned had been taken, a petition asking for a new trial on the ground of newly discovered evidence, and renewed their prayer to set aside the probate of the Rulo will and to probate the St. Louis will. Compensation for services of plaintiff herein as attorney for defendant herein in resisting the second petition is the subject-matter of the present suit.

Plaintiff argues that the professional services performed in protecting the interests of defendant in the new proceeding were not within the contemplation of the parties to the written contract, when made, and that additional compensation is recoverable for the reasonable value of the additional services. The answer to this argument is found in the terms of the contract itself. Defendant herein is a layman. The contract was drawn by his attorneys. It speaks their language, describes the services to be performed, and fixes the terms of compensation for protecting the interests of defendant in a $1,000,000 controversy already in court. The Rulo will, giving their client all of testator's estate, except $150,000, had already been probated, and the time to appeal from the order of the probate court had expired. The undetermined course of litigation was in the minds of the attorneys, as shown by the language used in the

contract drawn by them. Definite compensation for, and services of, lawyers to protect the client's interests under a probated will, were in the minds of the parties. These interests had already been menaced by a proceeding to probate an alleged later will making a different disposition of decedent's estate. According to the literal terms of the contract the attorneys were employed by defendant "to defend his interests in certain litigation now pending in the county court of Richardson county, Nebraska, concerning the probate of the will of Stephen B. Miles, deceased." This employment is not limited to a case, or to a proceeding, or to a petition, but extends to "litigation" concerning the "probate of the will of Stephen B. Miles, deceased." Litigation concerning that subject fairly includes the application, on the ground of newly discovered evidence, for a new trial in the proceeding which resulted in the rejection of the St. Louis will. A new trial



on the ground of Attorney and newly discovered services conevidence is a statutory remedy, which attorneys may reasonably contemplate in making a contract to protect, for specific fees, the interests of their client in pending litigation. In the first proceeding the district court's judgment rejecting the St. Louis will and refusing to set aside the Rulo will, when affirmed by the supreme court in Williams v. Miles, supra, was not a "termination," entitling plaintiff herein to the balance of his stipulated compensation, within the meaning of the contract, since the application to set aside the district court's judgment from which the appeal to the supreme court had been taken, was pending, and, if ultimately granted, would have destroyed the affirmed judgment.

The contract, according to its plain import, required plaintiff herein to perform the services for which he is seeking to recover; but, even if there were two reasonable constructions, the one most favorable

Same-strict construction.

to defendant should be adopted. The general rule is that a doubtful or ambiguous contract for professional services and compensation of the attorney who drew it should be construed in favor of the client. 6 C. J. p. 738, § 314; Samuels v. Simpson, 144 App. Div. 466, 129 N. Y. Supp. 534; Walsh v.

Helena School Dist. 17 Mont. 413, 43 Pac. 180; Re Hawke, 148 App. Div. 326, 133 N. Y. Supp. 23, id. 204 N. Y. 671, 98 N. E. 1097. In this view of the contract and the law, plaintiff did not make a case.

It follows that the judgment of the District Court is affirmed.

Letton and Aldrich, JJ., not participating.


Construction of contract as regards services contemplated by it where attorney claims compensation in addition to amount named therein.

I. Introductory:

a. Rule of construction, 844. b. Other rules, 845.

II. Where no contest expected, 846. III. Services in the suit, 847.

IV. Services in collateral suits, 848.

I. Introductory.

a. Rule of construction.

It is general law that, on account of the confidential relation between them, contracts made between an attorney and a client, after the relation has been established, are to be construed against the attorney. "It is the duty of the attorney to have the contract (if there be one) clearly and definitely stated, and understood not only in its language, but also in its spirit, legal consequences, and practical results." Planters Bank v. Hornberger (1867) 4 Coldw. (Tenn.) 531.

But contracts of employment of an attorney, beginning the relation of attorney and client, are not within the rule of presumption against the attorney, which obtains in contracts between attorney and client after the relation has been established, as may be seen by reference to the following cases, beyond the scope of this note: Cooley v. Miller (1909) 156 Cal. 510, 105 Pac. 981; Rust v. Larue (1823) 4 Litt. (Ky.) 412, 14 Am. Dec. 172 (contract set aside on other ground); Clifford v. Braun (1902) 71 App. Div. 432, 75 N. Y. Supp. 856; Boyd v. Daily (1903) 85 App. Div. 581, 83 N. Y. Supp. 539; Re Howell (1915) 215 N. Y. 466,

V. Services after judgment or settle


a. In general, 848.

b. Motion for new trial, 849.

c. Appeals, 849.

d. Other suits, 851. VI. Particular contracts, 851. VII. Miscellaneous, 854.

109 N. E. 572, Ann. Cas. 1917A, 527 (apparently recognizing the rule); Dockery v. McLellan (1896) 93 Wis. 381, 67 N. W. 733.

The scope of this note does not admit of a full examination of the cases as to the rule of construction that should apply in the construction of contracts of employment which begin the relation of attorney and client; but there seems, in general, a disposition to regard the parties as standing on an equality in making the contract. Sometimes it is said they deal at arm's length. Kent v. Fishblate (1915) 247 Pa. 361, 93 Atl. 509. In Hansel v Norblad (1905) 78 Or. 38, 151 Pac. 962, the court said: "In the preliminary bargain, the rule goes no further than to ascertain if the parties are free and competent to contract, and are not laboring under any impediment caused by fraud, undue influence, or abuse of confidence."

This is not a satisfactory situation so far as ambiguity or obscurity in the contract is concerned, nor is it sufficiently relieved by construing the contract against the attorney on the ground that he was its draftsman. Morgan v. Roberts (1865) 38 Ill. 65. Generally speaking, the responsibility

for any obscurity as to the services in litigation, provided for in a contract. of retainer, ought to rest upon the attorney, whether he drew the contract or not. Such a rule should require no principle for its support beyond the fact that he is an attorney, making a contract with a prospective client, and the burden should be upon him to show, if he can, why the circumstances of the case excuse him. There are indications in some cases of views of this character.

In Whiting v. Davidge (1904) 23 App. D. C. 156, the court said: "While in contracts between counsel and client, even when the relation is only inchoate, as it was in the present case at the time of the execution of the contract in controversy, the utmost fairness is required, and doubt should be resolved, where reasonable doubt exists, against the contention of the counsel; yet an allegation of wrongdoing on the part of one now deceased, which in all probability could neither be proved nor disproved under the law, must be received with disfavor."

In Pinto v. Seely (1913) 22 Cal. App. 318, 135 Pac. 43, where the court does not seem to distinguish between contracts where the relation already existed and those of original retainer, it said, in dealing with a contract of the latter kind: "It may be conceded that in construing contracts between attorneys and clients concerning compensation, in which there is any ambiguity as to the intent of the parties, it is the rule, generally accepted by courts, to adopt such a construction of the contract as will be most favorable to the interests of the client.

. . We do not understand, however, that the rule in this behalf is so inflexible that it may be invoked to perpetrate a palpable injustice, or that it calls for a construction of such contract beyond the express covenants of the parties."

In construing a contract for the payment of a contingent fee, where the client had independent advice, the court said: "An attorney ought to have his agreement with his clients so plain as not to require construction, and even though the client has inde

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Attorneys serving a corporation at a salary cannot recover more than the salary, without facts showing that Trimble they are entitled to do so. v. Guardian Trust Co. (1912) 244 Mo. 228, 148 S. W. 934. But an attorney employed at a salary, where his employer is at liberty to change the salary or end the employment at any time, may make with his client a special agreement for services in a certain matter. Bartlett v. Odd Fellows' Sav. Bank (1889) 79 Cal. 218, 12 Am. St. Pep. 139, 21 Pac. 743.

An attorney ought not to do work he considers beyond the contract, with the intent of charging his client therefor, without consulting his client and enlarging the contract. Moses v. Bagley (1875) 55 Ga. 283; Reynolds v. Sorosis Fruit Co. (1901) 133 Cal. 625, 66 Pac. 21; Gabrielson v. Gorin (1916) 92 Wash. 408, 159 Pac. 387.

R. having agreed to advise the manager of the defendant until all matters pertaining to the relation with H. & Co. were adjusted, the defendant agreed to pay C. & R. a certain sum for all services in the county of S., and four trips to a certain city by R., if necessary. It was held that the contract included services rendered in suits about the matter concerned, brought by the defendant, and in one brought against it, certainly where the attorney remained silent until the suits had terminated. He could not then claim an additional amount for services. Reynolds v. Sorosis Fruit Co. (Cal.) supra.

An agreement to foreclose a chattel mortgage for a certain fee does not entitle the attorney to charge additional compensation for services in

relation to a "settlement" of the case by an extension of time, where he did not inform his client, when doing the work, that such services were outside the contract of employment. Gabrielson v. Gorin (Wash.) supra, where the court said: "We think the rule in cases of this kind is well stated in Isham v. Parker (1892) 3 Wash. 767, 29 Pac. 835, to the effect that where an attorney performs any unusual professional services, 'where there was no further understanding or request, and where there was nothing to show that it was understood by the client that such services were outside of or in addition to the services provided for by the contract of employment, the attorney should be precluded from recovering anything in excess of the contract price.""

"If in a conversation, subsequently to the making the contract, the parties get together, and the attorney says that the litigation is heavier than either of them contemplated, and he expects to charge additional fees, or words to that effect, and the client makes no response, such failure to respond will not rescind or modify the contract." Moses v. Bagley (Ga.) supra.

It may be noted that in an action by an attorney for services, under a contract employing him, for a certain sum, to manage an action for ejectment in a certain court, to be brought by said attorney for the client, it was held to be error to instruct the jury that the attorney "had a legal right to recover, if he had performed any substantial service as attorney and counsel in the case mentioned in the covenant." Lockwood v. Brush (1838) 6 Dana (Ky.) 433.

Where, on a motion by a client to compel his attorney to pay over money collected for him, there arises a controversy of fact as to the services covered by the contract between them, the court ought not to deny the motion on affidavits, but ought to take the proof, or have it taken by a referee. Re Martin (1902) 73 App. Div. 505, 77 N. Y. Supp. 192.

II. Where no contest expected. If the agreement is to foreclose a

mortgage for a certain sum, provided there is no defense, and there is a vigorous defense, there is no contract as to the amount of the fee. Kracht v. Empire State Surety Co. (1911) 62 Wash. 339, 113 Pac. 769.

Where an attorney was employed for a specified fee to bring an action to quiet title, to which it was not expected there would be any defense, and after a defense had been made he had a conversation with his client in which he stated: "We have a fight on our hands," to which the client replied: "Go ahead with the suit and fight it to a finish," the attorney was not limited to the fee originally specified, particularly where the client had made payments to him in excess of such fee. Tong v. Orr (1909) 44 Ind. App. 681, 87 N. E. 147, 88 N. E. 308.

An agreement that an Indianapolis attorney, employed to collect by suit. or other lawful means, from persons in Virginia, money of which they had defrauded his clients, he to be paid a percentage of collections and the expenses, will not limit the attorney to such percentage of the amount collected by suit, when it was expected that a settlement could be made with out suit, and the attorney's services included those which he claimed were not included in the contract, to wit: "Traveling over the country, spending as much as three weeks on one occasion in Virginia, nearly 1,000 miles from his office, in search of evidence to be used upon the trial; and the other, of a month or more time spent after the final decree had been entered in the cause on its merits, with a view of ascertaining what, if anything, could be recovered from the different parties against whom the decree had been entered, and professional services in connection therewith."


v. Gates (1904) 130 Fed. 364, affirmed in (1905) 69 C. C. A. 200, 136 Fed. 184.

But where there was an agreement by an attorney for a contingent fee upon collection of a promissory note, it being understood that the note would not be contested, and the attorney continued in the case although it was contested, it was held that he could not, after judgment against his

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