, 1892-06-07
FOR ATTORNEY FEES
An Action Brought to Recover
Money for Services Rendered.
The Judgment of the Lower Court
Affirmed Upon Certain COndi-
tiOns, to be Performed by Re
CONTINUED from Monday. J

NAOMH9 ~ OC n " nv
spOndent within Thirty Days.
CONTINUED from Monday)
This contract should receive reasonable
construction with an aim to get at the true
intent of the parties entering into it, as eX-
pressed by its language, of course, but also
as applied to the subject matter and the
then existing situation. That there was
no attempt therein on the part of Isham to
drive a sharp bargain or to over-reach Par
ker is apparent. There is nothing in the
language employed, and there was moth
ing in the situation to indicate design
upon the part of Isham to cunningly word
the contract so that there would be room
for him to recover additional compensation
for services in those cases. Nor is there
anything to indicate that 1t was intended
to cover absolutely and under all manner
of contingencies whatever services should
be rendered necessary therein. 1t is evil
dent that the parties only had in view the
usual services ordinarily rendered in such
cases. Neither thought of anything else or
supposed for a moment that any other
character Of services would be required in
the conduct of said cases beyond what was
usual and ordinary. The ordinary service
to be rendered in the prosecution and de-
tense of the cases specified to carry them
through the territorial courts, and to pros
ecute or defend an appeal therein in the
supreme court of the United States if re-
quired so to do, was not a matter of specu-
lation at all, but was well defined by the
practice and understood. Now, upon what
principle of Justice should the court i'm
port anything else into the contract? Why
should the fact that unusual difficulties
presented themselves to be overcome in the
prosecution of such cases requiring the
work to be more than twice done over, and
that an exceptionally arduOus and devious
course was allotted to them in their life
time to Isham's misfortune instead Of
Parker's unless the same was due to Ish-
ANS faultP 1t was the clients interests
which were at stake, and the benefits to be
derived from a successful termination
would belong to him. The right of the
parties to contract with each other in the
premises of course is not questioned, and
the attorney had done nothing for which
he deserved punishment His professional
conduct of the cases, as far as matters of
practice were concerned, was Yindicated
bY the highest court in the land. Because
the cases went against his client ultimately
upon the law and the facts would make no
difference as to his right to recover pay for
his services, for he was not an insurer of
results, he was only bound to bring a
reasonable degree Of skill and diligence to
their prosecution. There is nothing to
show that the client was in any wise mis-
led in entering into this contract, or that
his attorney in any way subsequently led
him to believe that the services in question
were provided for in the contract.
While under ordinary circumstances the
contract in question would have covered
all the services necessary to be rendered by
an attorney in the prosecution and de-
tense of those cases, yet under the peculiar
difficulties in which they became involved,
and the circumstances surrounding the
dealings between the parties to this action
with reference to said business, as shown
by the testimony, it is evident that there is
no principle of justice, or question of pub
lie policy, calling upon the court to say as
a matter of law that all Of the services so
rendered should be held to be within the
services required by the written contract,
that it included services very unusual in
character, althounh subsequently rendered
necessary by unlocked for contingencies,
as well as those of a common and ordinary
nature. The Jealous regard that the law
rightfully exercises in protecting the inter-
ests of the client in his dealings with his
attorney should not be allowed to operate
so far as to work rank injustice to the at
torney in matters where it is apparent
there could haYe been no possible design
on the attorneys part to Overreach his
client in entering into the contract. That
the cases had such hard road to travel
was the clients misfortune, and we are Of
the opinion that the attorney could not
have been compelled to argue them a
second time in the supreme court of the
territory without additional compensation
and the same is true with regard to the
petitions for a re-hearing. If, however,
such work should be rendered necessary
by some wrong or fault upon the the part
of the attorney, the rule would be diff
ferent, and ne might be liable for
the damages resulting to his client
as we'll but not where the
same is occasioned by something which
the court had overlooked or upon the
courts mistake. We think, however, the
law goes this far, that where a contract like
the one here exists between the attorney
and client, if the attorney should prepare
and file petition fora rehearing, orshould
reargue the cases, or perform any other un-
usual professional services therein, where
there was no further understanding or re-
quest, and where there was nothing to
show that it was understood by the client
that such services were outside OF or in ad
dition to the services provided for by the
contract of employment, the attorney
should be precluded from recovering any
thing in excess of the contract price. But
in this case there was testimony intro
duced which, if true, was competent to
show that the petitions filed for rehear-
ing in the cases of Denny VS.. Parker and
Parker VS.. Dacres upon their dismissal by
the territorial supreme court were only
filed preliminary to and as necessary step
to allow a sufficient showing to be made in
the proceedings to obtain the Writs of man.
damus. That if it had been determined
not to apply for these writs the rehearing
would not have been asked for in either of
these cases. That these petitions as
we'll as the applications for said writs
were regarded by Parker as well as bV
Isham, as outside of the services provided
for in the written contract. Neither Par
ker nor Isham seemed to have any conf
dence in their being able to make suffi-
chOvrir1cr yrybfoh he r.. 81
court would deem sufficient to warrant the
setting aside of the judgments ofdismissal,
md allowing the cases to be again submit
ted on the merits. But it was considered
necessary to make the application as a ba-
sis upon which to apply for the writs of
mandamus in order that there might be
no doubt as to their having first COM
pletely exhausted their remedy in the
lower court, and that so far as it related to
the territorial court it was more matter
of form than one from which they expect
ed substantial benefit, and that Parker, un-
derstanding the situation of the cases, spe-
ciallY requested Isham to prepare and file
these petitions and apply for the writs of
mandamus. The testimony was properly
admitted.
The respondent is ght in his contention
as to the applications for the writs of
mandamus. This was not taking of the
cases to the United States supreme court
WlGhAh UHO AhCt'ilAiS VI UnO OOuOl aOV' IL
was an unusual proceeding, and was re-
sorted to as respondent contends to COM
pei the territorial court to proceed to a
hearing and disposition of the cases upon
the merits, and was in no wise provided
for in the contract or within the contempla
tiOn of the parties.
The same is true with regard to the prep
aration of the digest, or abstract of the
testimony, in the case of Denny VS.. Parker
This was very unusual order rendered
necessary by the exceeding length of the
testimony, and was in fact made after the
case had been argued and submitted. Il
appears that the court would not allow re
spOndent to recover anything for the pro
fessional work in selecting the testimony