Robertson v. Gordon

34 App. D.C. 539, 1910 U.S. App. LEXIS 5847

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 1, 1910
• Docket: No. 2077
• Status: Published

Opinion

Mr. Ohief Justice Shepard

delivered the opinion of the Court:

Our conclusions from the testimony are these: Eobertson was brought into the. negotiation by Gwydir, ’ after the contract-of Maish and Gordon with the Indians had expired by limitation, in an attempt by Gordon to have Gwydir make a new contract with the Indians, similar to the old one, and either, in the name of Gordon and associates, or Gwydir and associates.

The contract between Gordon and Eobertson, of March 28th, 1906, was made when all of the parties claiming to represent the Indians were working to secure from Congress -a direct appropriation of 15 per cent of the entire amount appropriated to the Indians. Gordon had interested Butler and Yale and others with him, and his relations with them had become strained. He suspected Butler and Yale of an intention to secure the bulk of the allowance. There was also another attorney, one Nuzum, who claimed to represent the Indians under some arrangement independent of and conflicting with’ the Maish and Gordon contract. While the matter of the appropriation was pending in Congress, to wit on April 3d, 1906, Gordon, Butler, Vale aud Eobertson, executed the following agreement with each other:

The undersigned hereby stipulate and agree that their respective claims for services rendered the Colville Indians be submitted to the conference committee of the Senate and House of Eepresentatives on a quantum meruit, and agree to stand to and abide by any award which shall be made in the premises, and, in case no award shall- be made, the rights of the said parties shall- remain unaffected.

This the 3d day of April, 1906.

Hugh H. Gordon,

Bor himself and associates.

Marion Butler,

B. C. Eobertson,

Butler & Vale.

Subsequently, it seems,' they had hopes, by joining with Nuzum, of obtaining the appropriation before referred to, of $150,000, and the following agreement was then made:

Washington, D. C., Apr. 12, ’06.

This agreement made and entered into between Marion Butler on his own behalf and'on behalf of his associate counsel, E. W. Nuzum, on his behalf and on behalf of his associates, and Hugh Gordon and B. C. Eobertson; Witnesseth:

That whereas, each of the said parties mentioned herein have rendered services as attorneys for the Colville Indians, and claim the right to participate in any appropriation made to pay said'attorneys’fees;

Now, therefore, Provided the sum of one hundred and fifty' thousand ($150,000) is allowed for the payment of attorneys representing said -tribe of Indians then of the said sum eightéen thousand seven hundred and fifty ($18,750) dollars is to be paid to the said E. W. Nuzum for himself and-associates, and nine thousand three hundred and seventy-five ($9,375) dollars to Hugh Gordon, and nine thousand three hundred and seventy-five ($9,375) dollars to E. 0. Robertson; the remainder of said sum to be distributed by the said Marion Butler as he elects. Should the appropriation be less, then this agreement is to be the basis of the distribution, sharing pro rata in such diminished sum as the percentage is thereby diminished.

In witness whereof we have hereunto set our hands and seals at the city of Washington, the day and date above written.

R. W. Nuzum. (Seal)

Hugh H. Gordon. (Seal)

E. 0. Robertson. (Seal)

Marion Butler. (Seal)

The scheme to induce Congress to make this appropriation failed, and the final result was the action of the conference committee of the two Houses of Congress, which was incorporated in the act of June 21st, 1906, referring the matter of-the attorneys’ compensation to the court of claims. When the Butler and Yale petition was filed in that court, Robertson’s depositions were taken. He testified fully as to his services in the Indian claim, and says that he paid one third of the cost of taking the depositions. He was advised by Butler and Yale not to intervene in the said cause, as Gordon and others subsequently did, they assuring him that he would be protected by them under their agreement made before Congress acted. Butler and Yale, it will be remembered, expected to have the entire amount of the fee awarded to them, for distribution. Disappointed by the result in the court of claims, they attempted to recover the entire amount after award by the proceeding heretofore referred to. That attempt was finally defeated. See Butler v. Indian Protective Asso. ante, —. The record of tho proceeding in the court of claims was not introduced in evidence, beyond a copy of the final judgment. The testimony shows that Robertson did not file a formal petition of intervention, but his deposition was taken in proof of his services, and the award of $2,000 was made to him therefor. On April 15th, 1907, he wrote to Butler and Yale, whom he understood as representing him also, as follows:

Spokane, Washington, April 15, 1907.

Messrs. Butler & Yale,

Washington, D. C.

Gentlemen:—

I transmit to you a copy of a deposition I ask to be filed in this case. I sent the original to the Attorney General. The testimony of Mr. Gordon is not plain as to my sharing with him out of his recovery, and I desire that this be done.

On the same day he wrote to the Assistant Attorney General, who, by the terms of the act, was. required to represent the Indian interest, referring to the fact that it was not clear to him that Gordon recognized him as having become associated in the Indian service, until after Nuzum arrived in Washington. He inclosed his deposition, referring to which he said: “I wish you to see that this is filed, for really I stand in the position of an intervener, and have an independent right to protect my own rights in connection with the cocounsel in the case. I am satisfied that you, as the representative of the government, desire this matter to be fairly presented in this case, so that such award as may be made will be made by the court of claims, with a full understanding of the relation of the parties, and I send this directly to you as a government officer, because they are originals, and are of the utmost importance to me.” As the actual deposition given by Bobertson must have been returned to the court by the officer taking the same, it is probable that this deposition was a sworn statement, with exhibits, by Bobertson of his services and interests. It may have been one prepared in response to a request of Butler and Yale in a letter to him of July 25th, 1906. They say in this letter:

July 25th, 1906.

E. C. Bobertson, Esq.,

Spokane, Washington.

Dear Sir:—

We have heretofore written you requesting a statement of the services ■which 'you have rendéred the Colville Indians, and forward you a copy of the petition filed with this court. We have also suggested the line of services that should be shown to be éffective in procuring the judgment, and that is, services before committees of Congress and Departments, as opposed to services “before Congress” or individual Congressman to influence Congressional action; the latter class of services is, as you know, lobbying, and cannot be considered by the court. '

The law sending the case to the court requires that service shall be proven, and that in payment the kind of service shall be considered'; so that it is vital, if you have rendered any services to the Indians, that it shall be affirmatively shown.. And before we-undertake to take testimony it is, of course, essential that we shall have before us a complete view of the case in this regard.

(Robertson’s reply to this letter, too lengthy to copy, indicates his expectation that Butler and Vale would protect his interests).

• The testimony, however, does not show with any certainty what this inclosed deposition actually was. During his examination as a witness in this case, Robertson was shown a certified copy of his deposition that was taken in the regular manner before the court of claims, and the same was admitted. It appears that-he then testified that he became interested in the Maish and Gordon contract in 1903, and that his arrangement with Gordon was “entirely verbal,”—“nothing documentary.” He undertook to explain this by saying that he was not asked as to any subsequent contract with Gordon,, but simply as to' when he originally became interested in the matter. His evidence as to any service to Gordon before the date of the contract sued on,-—-namely March 28, 1906,—clearly began in the attempt, through Gwydir, to have a new contract made with the Indians, for which Gwydir was to be compensated.

The contract of March 28th, 1906, seems broad enough in its terms to apply to fees that might be received by Gordon under direct appropriation or otherwise, on account of his Indian contract, and would, we think, warrant a recovery by-Eobertson, if it were not for the subsequent..contracts- and proceedings. When the new agreements of April 3d, and April 12th, 1906, before, stated, were made, two situations were' contemplated: The first was that the matter of the -award might be .considered by the conference committee, and made on a quantum meruit basis, in which event they were to stand and abide by any award so made. Hoping by joining with Nfizum, who claimed under some other contract,-to obtain an appropriation of the entire sum of $150,000, they entered into the agreement providing for a different distribution, ■ in which Gordon and Eobertson were separately provided for. These new agreements took the place of all former ones between the parties; one to control in one probable event of Congressional action, the other to control in another. The result provided for in the agreement of April 3d occurred, but not exactly as anticipated.

The quantum meruit basis was adopted by Congress, but, instead of determining the several amounts by its own action, it referred that determination to the court of claims. It is not necessary to decide whether the contract of April 3d embraced any other determination, on the basis of quantum meruit, than that expected to be made by Congress directly, and would not apply to its determination by reference to the court of claims.

Whatever view may be taken of this, certainly those who appeared in that court and presented their claims for adjudication, and received separate and distinct awards therefor, are bound by their action and the judgment rendered thereon.

The proceedings on the petition of.Butler and Yale were informal, and there was no occasion that they should be otherwise. Although Eobertson did not appear by formal pleadings, it is clear that he considered himself a party, testified in support of his claims, and anticipated an award therefor. He did not undertake to magnify the services of Gordon in the expectation of subsequently sharing, with him, but magnified his own by giving them an earlier date than he was entitled to under his original contract with Gordon. His interests were apparently represented by Butler and Yale. As a separate award was made to Mm and to Gordon on the quantum meruit basis, we think that his conduct, though lacMng a formal pleading, was sufficient to bind him by the judgment rendered, and that he is estopped to contradict that judgment.

Agreeing with the conclusion of the learned trial justice, as we do, the decree will be affirmed, with costs. Affirmed.

An appeal to the Supreme Court of the United States was allowed April 5, 1910, on application of the appellant.