118 Ind. 170 | Ind. | 1889
The basis of the contract under which the appellees rendered professional services for the appellant is the following letter :
“ Gentlemen — Enclosed please find passes No. 253, A. W. Reynolds, and 254, E. B. Sellers, which are in full compensation for services that your firm may be called upon to render in White county during 1884, except for assisting in trials of cases against the company other than stock cases; for such services, if rendered, you are to receive reasonable attorney’s fees, in addition to enclosed passes.”
During the years 1884 and 1885 the appellees rendered services in fourteen actions brought against the appellant for killing and injuring stock. During the same period they rendered services in twenty-eight actions of a different kind. In five of these actions there were trials of issues of fact; in the remaining twenty-three cases demurrers were filed to the complaint, and the issues of law thus formed were determined by the court adversely to the appellant, and answers were subsequently filed, but the issues of fact thus formed were never tried. The court denied compensation in the fourteen “ stock cases,” and awarded it for the services rendered in the twenty-eight cases.
It is contended by appellant’s counsel that as the complaint counts upon a verbal contract the appellees must fail, because the facts stated in the special finding show the contract to be a written one. In support of this position it is asserted that the complaint must proceed upon a definite theory, and that the recovery must be upon that theory. Many cases from our own and other reports are cited. Among them are the cases of Mescall v. Tully, 91 Ind. 96, Lockwood v. Quackenbush, 83 N. Y. 607, Harris v. Hannibal, etc., R. R. Co., 37 Mo. 307, Batterson v. Chicago, etc., R. W. Co., 8 Am. & Eng. R. R. Cases, 123, and Waldhier v. Hannibal, etc., R. R. Co., 71 Mo. 514.
We have no doubt that counsel state the rule correctly, but the question is, do they give it a just application? That they
The contention of appellant’s counsel that because there were no trials of issues of fact in twenty-three of the cases-the appellees are not entitled to compensation, is utterly destitute of merit. The steps taken by the appellees were essential to the formation of issues, and were, therefore, necessarily contemplated by the contract. It is quite clear that the parties did not mean to use the word “trials ” in its narrowest technical signification; but they meant that necessary services rendered in actions should be paid for by the appellant. It certainly was not intended that no compensation should be paid. But the submission of the cases on demurrer involved the trial of issues of law, and, therefore, there were “ trials,” even if the rigid construction insisted upon by counsel be conceded to be correct. Coke’s Littleton, 1246. We do not, however, “ stick in the bark ” by a strict adherence to words, for we look to the whole contract as construed by the acts of the parties under it, and this gives us a substantial foundation, as it is a settled and salutary principle that courts will follow the construction that the parties themselves, by their acts, have put upon their own contracts. Vinton v. Baldwin, 95 Ind. 433 ; Ætna Life Ins. Co. v. Nexsen, 84 Ind. 347; Willcuts v. Northwestern, etc., Ins. Co., 81 Ind. 300; Reissner v. Oxley, 80 Ind. 580; Johnson v. Gibson, 78 Ind. 282; Chicago v. Sheldon, 9 Wall. 50.
Judgment affirmed, with five per cent, damages and costs.