Gordon v. Gwydir

34 App. D.C. 508 | D.C. Cir. | 1910

Mr. Chief Justice Shepard

delivered the opinion of the Court.

The following errors have been assigned by appellant: 1. Error in holding that the contract with complainants gave them rights in the awards to Gordon & Maish independent of their contract with the Indians, and notwithstanding the fact that Maish & Gordon were deprived of all benefits under said contract. 2. Error in holding that the contract in suit, being an assignment of a part of an Indian contract, was invalid because it had not been approved and recorded as required by Rev. Stat. sec. 2106.

The question raised by the second assignment will be first considered. Rev. Stat. sec. 2103, provides that no agreement shall be made by any person with any Indian tribe, or individual Indian, in consideration of services for said Indians in reference to lands, moneys, etc., under treaties or laws of the United States, etc., unless in writing, and, among other requisites, approved by the Secretary of the Interior and the Commissioner of Indian Affairs. It appears that the contract between Gordon & Maish and the Indians came under and was in compliance with this statute.

Rev. Stat. sec. 2106, provides that “no assignment of any contracts embraced by sec. 2103, or of any part of one, shall be valid unless the names of the assignees and their residences and occupations be entered in writing upon the contract, and the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon.”

There is no pretense that the contract upon which the suit is founded was indorsed or approved, as required by sec. 2106, and the question is whether it is such an assignment of a part of the Indian contract as to bring it within its purview.

The Indians are the wards of the United States, and the supervision of their affairs and the protection of their interests have been confided to the Secretary of the Interior. In view of this relation it was eminently proper, as is done by sec. 2103, to require all contracts made with the Indians touching their lands and treaty claims, to be made subject to the approval of the Commissioner of Indian Affairs and the Secretary of the Interior, in order to prevent undue advantage from being taken of' their ignorance and improvidence. For the same reason, in order to prevent approved contractors from thereafter assigning their contracts, in whole or in part, to improper persons, sec. 2106 makes the validity of such assignments depend upon a like submission and approval. These provisions are for the protection of the Indian solely, and should be liberally construed to that end. But we see no reason for extending them by construction, so as to prohibit the approved contractors from employing others to assist them afterwards, or from mating contracts pledging a part of their prospective compensation, provided such contracts do not amount to an assignment of the contract and the substitution of other contractors. The liability of the Indians could not be affected thereby. This view of the operation of sec. 2106 seems to have prevailed with Congress; for the clause of the act, under which the attorneys’ fees were allowed by the court of claims, expressly recognized contracts of Maish & Gordon employing associates and stipulating for a portion of their fees. It expressly required that the petition for allowance should be filed by Butler & Vale, who came into the Indians’ service by contract with Maish & Gordon. Moreover, the court of claims found no difficulty in recognizing these contracts of Maish & Gordon in distributing the fund. Turning to the contract, which is set out above, we find nothing in it assigning the contract of Maish & Gordon, or any part of it, to the complainants. Maish & Gordon, in consideration of their services in procuring the Indian contract, agree to pay them six forty-fifths of whatever sum they may receive by virtue of said contract, and the language is such as to create an equitable lien thereon when realized.

The argument on behalf of the appellant under the other assignment of error is substantially this: Maish & Gordon contracted with appellees solely with a view to the benefits to accrue to the former under their contract with the Indians. The consideration of the second was services in procuring the first,—no service was to be rendered in the prosecution of the demand of the Indians. The payment of the appellees was contingent upon the payment of the fee of the Indians in accordance with the contract. The provision in the contract with appellees relating to the proportional reduction had no reference to the possibility of Maish & Gordon being paid on a quantum meruit basis. The contract between the Indians and Maish & Gordon expired by limitation two years before the appropriation act was passed, and that act contemplated payment, not under any contract, but for services actually performed.

We are not impressed by the strength of this argument. It is true that when the contract was made all parties expected performance of, and payment under, the Indian contract. But it contemplated a probable reduction of the commissions thereunder, and provided for a corresponding reduction in the compensation of appellees. After providing for this reduction at length, this clause follows: “In other words, we agree to pay said Gwydir, Edwards, and Hall jointly in a fee amounting to six forty-fifths (6/45) of the fee or commission actually paid to us.” True, also, the Indian contract with Maish & Gordon had expired by limitation, but Maish & Gordon continued to represent the Indians by virtue of that employment. Congress recognized them and their associates in providing for the ascertainment of the proper fee hy the court of claims. The Indians did not declare the contract at an end. They continued to receive the services and acquiesced in this practical extension of the contract.

Congress, however, in the exercise of its unquestioned power in the premises, declined to make an appropriation according to the terms of the contract. Instead, it conferred jurisdiction upon the. court of claims to ascertain the amount of compensation to be paid to the attorneys who had rendered services as counsel on behalf of said Indians in the prosecution of the claim. And in determining that compensation the court was permitted to consider “all contracts or agreements entered into by said Indians with attorneys, who have represented them in the prosecution of said claims.” See act of July 21st, 1906. While the petition for the ascertainment of the fee was directed to be filed by Butler and Vale, the court of claims entertained interventions by other attorneys, including Gordon & Maish’s administrator, and made separate awards to them as follows: To Miller $6,000; to Gordon $14,000; to Butler $20,000; to Vale $10,000; to U. B. Henderson $5,000; to H. J. May $3,000; and to Frederick C. Bohertson $2,000. This division was contested in the case of Butler v. Indian Protective Asso. ante, 284, but it was held that whether erroneous or not the judgment of the court of claims was conclusive and binding upon all of the parties. It is sufficient to say that in the case before the court of claims under tbe reference by Congress, tbe appellees had no standing. Not pretending to have any contract with the Indians, or to have rendered any services to them, they were expressly excluded by the terms of the act. Their services were rendered to Maish & Gordon alone, and their contract was with them. Now, while Maish & Gordon-did not receive the compensation provided in their contract with the Indians, the same having been disregarded by Congress to that extent, nevertheless it was the foundation of the award actually made to them. Their services had, from the beginning to the end, been performed under and by virtue of that contract, which Congress provided should be considered in making the award. Without that contract as a foundation for the services rendered, they would have had no standing whatever in the court of claims. That the court, allowed other associate counsel large sums, and only assessed the value of their personal services at $20,000, is their misfortune. Their misfortune is shared by the appellees, who, under their contract, are only entitled to six forty-fifths of the amount actually awarded. To this we think they were justly entitled, and the decree awarding it to them will therefore be affirmed, with costs. ■ Affirmed.