182 Iowa 1207 | Iowa | 1918
“Of course, we talked about witnesses before I got to the contract. I told him all the witnesses I had, and everything like that; and then we talked on general topics for a little while, and I asked him, ‘What is this going to cost me in case we lose this suit?’ and he answered, ‘It won’t cost you a cent; I will pay the costs of the court;’ and I replied, ‘All right, that looks better to me.’ ”
It is not impossible to strain this, standing alone, into a statement that the two agreements were made together, and that the two constitute the contract. But for reasons presently to be stated, this would be strained and untenable construction. It means that witnesses were talked about before contract to pay for services was reached; that then it was made; that then the parties “talked on general topics;” then plaintiff came to think about the costs; and thereupon,
We conclude that, in strictness, divisibility is not involved, but that the matter of costs is controlled by a contract which is no part of the one as to pay for services.
Kelly’s version is that, when he found, after the agreement concerning compensation had been made, that Clancy was financially unable to pay such witnesses as demanded their fees in advance, he agreed to help Clancy out in this regard, and did so. A witness for plaintiff says that Clancy said corporations were hard to beat; that he would have to meet the expense of'it.
In determining Avhether a contract is champertous, the intention is the controlling thing; and there should be no strained interpretation, with the result that an immoral use is imputed. Calkins v. Pease, 125 Ill. App. 270.
“And while it is the duty of all courts to maintain, so far as possible, the purity and dignity of the profession, and to frown upon the illegal and immoral acts of any of its members, the brand of illegal and immoral action should not be recklessly applied without sufficient evidence to warrant the application.” Wallace v. Chicago, M. & St. P. R. Co., 112 Iowa 565, at 567, 568.
Guided by these rules of construction, it is not unreasonable to hold that all done, in effect, was that Kelly told Clancy that the latter need not worry about the costs; that he would win, and that, therefore, there would be no costs; and that this somewhat optimistic but not unnatural statement was backed up by an assurance that, if this guess was wrong, the guesser would pay the costs,— and all that was done is that, when Clancy found himself unable to pay fees demanded by witnesses, Kelly advanced them, and some other court costs.
It is true that, in some cases Avlierein the agreement included payment of the costs by the attorney out of his part of the recovery, we have held the agreement to be c.hampertous. Such cases are Avell illustrated by Boardman & Brown v. Thomson, 25 Iowa 487; Barthell v. Chicago, M. & St.
“But this is not sufficient evidence of an illegal and immoral contract, for but few cases of any kind are handled*1214 by the most exact and conscientious of the profession where they are not called upon to do many or all of the things complained of here, and where they do not hesitate to make advancements, without thought of wrong, and in most instances, without thought of how or when repayment will be ' made.”
We have found no decision of this court which condemns an agreement to advance costs, such as was made here, where the agreement does not involve more than such a costs arrangement. The Wallace case holds what was done here to be lawful, and we hold there was no champerty.
Of course, it was competent for the parties to agree that no addition should be made to the one third which was, on collection, due for obtaining judgment in the district court, unless an affirmance was obtained, after a full contest. But was that the agreement, merely because enlarged compensation was due only if the case was successfully “tried” in the appellate court? Does “tried” define the amount of “trying,” and is a contest to the end an essential?
Both understood that the judgment in district court was of no avail unless the appeal was defeated. It must have been understood that, if an appeal was perfected, defendant should give it all proper attention at once, and before it could be known whether the appeal would ever be
We are of the opinion that the judgment below must be reversed. The cause is remanded, with direction that the district court enter judgment for plaintiff’s costs in both courts to be paid by plaintiff, and otherwise in accordance with this opinion. — Reversed and remanded.