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, [167 U.S. 681, 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.
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:
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. [167 U.S. 681, 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 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 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 [167 U.S. 681, 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. 369 , 5 Sup. Ct. 170.
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 [167 U.S. 681, 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 , 8 Sup. Ct. 437.
It appears that after the decision of this court in 112 U.S. 369 , 5 Sup. Ct. 170, 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:
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.