It Ihnst be remembered that we' are now, in this suit, dealing with the rights only of these parties........the United States and these defelldantsarising out of this statutory contract for the construction of the road in question. If the Dalles Military ROad Company, or any of these defendants,after the full performance of this statutory contract, and after their right, to the land had fully vested under it, assumed to own and control this road, keep it as a toll-rond as to all parties other than the United States, or exercised any other rights under other statutes of the state of Oregon; or if any liabilities accrued to the United States, the state of Oregon; or to private 'pa"'ties, arising under other statutes or laws of either the lJnited States or the state of Oregon. that is a matter wholly foreign to the inquiry now before the court; We are to deal simply with this statutory oOlitraot, and even in relation to that, which is the only thing we could under any circumstances, deal with, we are limited in our inquiry by the statute under which the suit is brought to three points: 1. Weare to detennine the question of seasonable and proper completionof said roads in accordance with the terms of the granting acts, eitherin whole or in part--not according to the terms of other acts, state or' national.' . 2. The legal effect of the several certificates of the governors of the state of Oregon of the completion of said roads and the right of resumption of said gl'aDted lands by the United States. lk And we must determine these questions in a manner "saving and preserving the rights of bona fide purchasers of either of said grants, or of any portiohOhll.id grants, for a valuable consideration." 25 U. S. St. 851. ., , ' There is nothing here said about "maintaining" the roads after construction. Manifestly, congress in passing this act had no idea that the Dalles Company were required by either or both of the acts in question to maintain the road after completion, in accordance with the statutory contract. Weare only to deal with the statutory contract for constructing the roads and ascertain Whether the contract in that particular has been performed wholly or in part,andif not fully performed, what are the rights of the' parties under the governors' certificates, notwithstanding the failure to wholly or in part comply with the contract; and what are the rightS of bona fide purchasers if these certificates can be success· fully asslliledll.nd disregarded so far as participants in the'fraud are:concerneLl? ' The caseo! Schutz v. Road 00.,7 Or. 264 1 has been confidently cited, as establishiilg:a view different from ,that now adopted. In that case the question noW under consideration was not necessarily, or at aU involved, and there Was no occasion to determine, whether the statutory contract was performed in such sense as' to entitle the Dalles Com pany to the lands in question, or whether 'under the two acts now in question, considered: by 'themselves, said company was required to maintain the road afteroolupletion in accordance with these statutes alone. The instruction, underdisctlssion,iri that case, may have been entirely correct, under the other generalla;ws 'of Oregon, requiring parties who assunle to
UNITED -STATES V. DALLES MILITARY: ROAD CO.
own, or, at least, control and operate a public road for tolls collected or other proper consideration. Liabilities may well accrue against such parties in favor of the United States, the state of Oregon or private parties for their neglects or violations of duty. But·if so, the liability in question did not result alone from a, breach of the statutory contract, now under consideration, nor did the court so decide. The plaintiff was a pnvateparty, carrying the United States mail under a contract with the government. He did not sue on this statutory contract for a breach either as an original party or as assignee of the United States. The United States were iIi no sense parties to the suit. The suit was for a breach of duty to maintain the road under the laws of Oregon, and the statutes in question were drawn in to show a right to use the road with. out charge. But if the court .intended to assert, which I do not think it did-that this statutory contract alone required the Dalles Company to maintain this road after it had beencotnpleted according to the contract,and accepted then I cannot concur in that view. That case might have been, indeed should have been, and it doubtless was, dispofled of upon entirely differentconsiderations-,-upon the rights of the parties arising out of an assumption on the part of the . company to own and control the road, and to collect tolls thereonunderotherlaws of Oregon. The right to collect tolls isa franchise granted only by the state. There was'uo:such franchise granted by the acts in question. The case shows that it was decided in 1879 and arose many years after the road was requiredto be completed by the act of congress of 1867 in question jthat the 'defendant therein was a corporation organized under the laws of Oregon ,"for the purpose of constructing and maintaining" the foad "and collecting tolls thereon;" (7 Or. 259;) "that it neglected to construct or the road: in accordance. with the saidacts.of conp;resa and of the legislature of Oregon," (Id .. 260;).and the answer.admits the incorporation to build the road and collect tolls, (Id. 261.) Manifestly, then, the corporation was in the exercise and enjoyment of other franchises and different rights, than those derived under the acts of congress and legisla,tion of Oregon now in question, fo'rneither of these acts makes frapphise Q.r rights, and other laws any reference whatever to any :<>f Oregon were properly b13 fore the court for consideration in that case, and 'doubtless it was upon those raws opinion of ine court was predicated. There seems to be some confusion of ideas in the theory upon which that case was presented. The two acts now under consideration, constituting a statutory contract for the construction of this road, have no necessary connection with that case except so far as to exempt the United States from tolls, unless by virtue of other statutes in no wise affecting the contract with which we are dealing, and the rights of the United States, and these defendants under it. That road might just as well have been constructed under the acts in question by any other corporation, or private individual, had the grant been assigned to them, and having been completed and accepted, and the contractor having afterwards withdrawn, the Dalles Military Road Company might then have taken possession of the completed road, under other statutes of Oregon,
and kept and maintained it as atoll-road, in the management of which many obligations and liabilities might have arisen, hfl.ving no relation whatever to the acts and statutory oontract for the mere construction of the road. There is no necessary connection whatever between this statutory contract and its performance, and the maintaining and operating of this road, as a toll·road after its completion and acceptance, either by the parties constructing it or others; and the rights of the United States and the defendants under these specific statutes, cannot in any way be affected by the arrangement between the statflltnd the Dalles Company and its grantees made under other statutes, having no special reference to the construction of the road under the acts in question.. The rights resting upon different statutes must stand or fall upon the statutes applicable to the specific subject.matter, and can neither be aided nor impaired' by other acts having no relation to them. The one class should not be confounded with, the other. Undoubtedly, this road, having been constructed' under the act of congress, the state could not impose. or authorize others to impose tolls or other charges upon the United States, or prevent its use free from tolls or other charges by the government for the transportation of any property, troops, or mails. The supreme court of Oregon. therefore, very properly have affh'med the correctness of the charge given in the case cited upon . '.>ther statutes of Oregon, either alone or in conjunction with the act of congress in question, without at all considering the questions now before the court, as to what is required to be done by the Dalles Company, by the statutory contract now under consideration unaffected by other statutes. The questions in the two cases are entirely distinct, and should not be confounded. Upon the views expressed all the exceptions to the bill for impertinence must be sustained, and it is 80 ordered.
ONlTBD SUTES tI. OREGON
(OircwU Oowrt, D.
CBn. MILJ'l'AJlY RoAD Co. Onlaon. October 7.1889.)
PER CtmU.M. Similar questions are preseJ;lted iD this be sustained upon the lIame lrrounds.
case, and t.he exceptionI mUI'
MANNIl\G V. CLARK.
MANNING 11. CLARK.
(Circuit Court, D. New Jersey. August 10,1&,89.)
ATTORNEY 1>ND CLIENT-COMPENSATION-CONTRACT-RESCISSION.
An attorney entered into a written contract to collect certain claims for a client, an elderly woman, in consideration of which the latter agreed to pay him a certain per cent. of the amounts collected. On collecting a claim, the attorney refused to pay the amount over until an increased compensation was paid him, alleging that the client llad subsequently orally agreed to pay him the increased fees. This the client denied, but, being unable to obtain the money collected without a lawsuit, after trying to effect a settlement for six months on the basis of the written contract, finally paid the amount demanded. The attorney's testimony as to the amount of compensation to be allowed by the alleged oral agreement was inconsistent with an affidavit made by him. Held, that the client was justified in rescinding the written contract, and in employing another attorney to collect the remaining claims.
At Law. Action on contract by Jerome F. Manning against George Clark, administrator d. b. n. of Thomas Olark, deceased. John Linn, for plaintiff. Malcolm W. Nevin, for defendant.
WALES, J. This action has been brought to recover damages for the breach of a contract alleged to have been entered into between the plaintiff and R. M. Oorwine & Son, of the one part, and Ellen Olark, the administratrix of Thomas Olark, of the other part. By the terms of the <:ontract the plaintifi" and the Corwines were to take the exclu!>ive charge and control of certain claims, known as "Alabama Claims," which Mrs. Clark, as the representative of her deceased husband's estate, held against the United States for the capture and bonding of the schooner Howard by the Oonfederate cruiser Florida, and for the subsequent capture and destruction of the said schooner by the Oonfederate cruiser Tallahassee, and to prosecute the same before any of the courts of the United States, government departments, Committees of congress, or commission spe-cially authorized to take cognizance of such claims. In consideration of their services in this behalf Mrs. Olark agreed to pay them a sum equal to 10· per cent. of the amount which might be allowed on said claims, or either of them, and the payment of the 10 percent. was made a lien on said claims, and on any draft, money, or evidence of indebtedness which might be paid or issued thereon. This agreement was not to be affected by any services performed by the claimant, or by any other agents or attorneys employed by her. All expenses of printing, -costs of court, and commissioner's fees for taking testimony, were to be ·charged to the parties of the first part; and Mrs. Clark further agreed to execute, from time to time, such powers of attorney as should be .necessary or convenient for the prosecution and collection of the claims. This contract was dated March 27, 1876. A few days after its execution R. M. Oorwine died, and on the 12th of April, 1876, Mrs. Olark a power· of attorney to Jerome F. Manning and Quinton Corwine, authorizing them, or either of them, to prosecute the claims, and to receive whatever should be awarded on account thereof, and give
proper acquittances therefor. In pursuance of this agreement, the plaintiff and Quinton Corwine began proceedings. before the court of commissioners of Alabama claims for the recovery of damages for the capture and bonding of Howard. The courtat fitst dismissed the claimant's petition, for what reason is not stated, but afterwards allowed it to be reinstated, and awarded her the sum of $2,101.87, for which amount a treasury draft, dated January 24,1877, payable to the order of Ellen Clark, was issued, and on the same day mailed to the plaintiff, at W orcester, Mass. On receiving this draft, or soon thereafter, the plaintiff sent to Mrs. Clark his account for services rendered. and money expended in attending to her business up to thattime; but, as his demand exceeded the 10 per cent. limit stipulated for ill the written contract, she refused to pay it, tendering him, however, the 10 per cent. commissions, and requesting a delivery to her of the draft. The plaintiff retained possession of the draft, alleging that, in the interim, between the dismissal of Mrs. Clark's petition and its reinstatement, she had made a new agreement as to the quantum of fees to be paid to her attorneys, on the representation being made to her by the plaintiff that, unless an increased compensation were allowed, he would decline to proceed any further in the business. This new agreement was an oral one, including hoth of the claims, .and rests on the unsupported testimony of the plaintiff. His aecount, as presented to Mrs. Clark, for services in the first case, was stated as follows: Twenty-five per cap.t onjudgm'ent. · &525 4-5 Interest on same for ·over·three months, 9 00 Amount 'paid for printing brief, 7 70 For professional sel'Vices in Washington" as given' in a previous
letter. .· ..
50 00 &592 15
Ml'$. Clark never admitted the new agreement. By her conduct and acts she uniformly denied and repudiated it. She tried to settle with the plaintiff on the basis of 10 percent., but was finally compelled, by his refusal to surrender the draft, to yield to his demands. Manning acknowledged the payment of his bill, on June 27, 1877, showing that he had kept the draft for. nearly six months, during the whole of which period efforts were made by Mrs. Clark and her son to effect a settlement with him according to the terms of the contract of March 27, 1876. Mrs. Clark applied to the treasury department for a duplicate draft, on the ground that the plaintiff refused to give up the original until his den\.a:nd for fees had been paid, and was informed that the plaintiff had filed an affidavit setting up the new agreement, and that the question of disputed facts would have to be settled elsewhere. In addition to wrote to Assistant Secreta,ry French that" the pretended written agreement they have is void and of no effect, by reason of a sUbsequent agreement in reference to it." Manning also threatened to "trustee" the draft if his account was not paid. Under these circumstances, with no other recourse but a lawsuit to establish her rights, Mrs. Clark paid Man-
MANNING t7. CLARE.
ning's'bill; and received the draft, and, from that time forward, there was no communication,' 'oral or written, between the parties until August 4, 1882, when the .plaintiff addressed a letter to Mrs. Clark, as follows:
"DEAR MADAM: 1 shall be ready now very soon to take testimony inth!\ matter of the 'schooner Howard. Will you or your son be kind enough to come in and see me in reference to it. Yon recollect that I r!\covered your other claim, and took It contract from you with a power of attorney. I have succeeded, after several years' contest in congress, in securing the passage of a law which provided for the payment of the claim in about two years, but we must begin to prepare the case."
This was followed by other letters from the plaintiff, under the respective dates of January 8 and 10, and December 26, 1883, in each of which he notified Mrs. Clark of his readiness to proceed with the prosecutionof the second claim, and advising her that he should hold her responsible for a breach of their contract in case she employed other counsel. 'She made no response to these requeE'ts of the plaintiff, except, on one occasion, to send her son to Mr. Manning with an offer to allow the case to be carried on in the name of Manning and Corwine, provided they would give security for the delivery of the draft that might be issued thereon, or, to use'the words of the witness, George Clark: "1 wanted an order from them for the draft to be delivered to my mother personally, and 1 was to deposit the amount of their claim, or give them sufficient security as to the payment of their fees, which was declined by Mr. Manning. My reason for so doing was that 1 did not wish to take the chances of their taking what they pleased out of the draft." Acting on her judgment of what would be best for the interests of her deceased husband's estate and her own, Mrs. Clark employed other counsel to collect the second claim, and on February 9, 1885, received the sum of $18,292.42, which was awarded to her as administratrix, for damages for the total loss of the Howard. These are the material facts on which the plaintiff's action rests; and for Mrs. Clark's refusal to permit him to take charge of and conduct the second case, and the substitution of other counsel, the plaintiff claims to be paid 10 per cent. of the amount of the second award, to-wit, $1,829.24, by virtue of the original contract, with interest from February 9, 1885, together with damages by reason of the breach of the said contract. These constitute his own standard for the measure of the damages. The present action was begun against Ellen Clark, administratrix of Thomas Clark, deceased, but on her death, and before the taking of any testimony, George Clark, her son, was substituted as administrator de bonis non of his father's estate. It would seem that Quinton Corwine had never taken a very active part the first claim, although he had done something, and claimed· a share of the commissions; but Manning dlaimed the whole of it, and" by letter of January 24, 1877, requested Mrs. Clark to settle with him, and not with Corwine. On November 4, 1878, Corwine ad-