This action was brought in the supreme court of the District of Columbia by defendants in error against plaintiff in error to recover the sum of ten thousand dollars ($10,000), alleged to be due on account of the following contract entered into by the parties:
This memorandum of agreement witnesseth: That John Vaile, Esq., of Fort Smith, Arkansas, having been employed by the Eastern Cherokee Council of the Cherokee Nation, Indian territory, under contract of February and April, 1900, and ratified a third time by that council of September 4, 1901; And whereas, the said John Vaile has employed the services of Robert L. Owen, of Muscogee, Indian territory, under his aforesaid contract:
Now, therefore, the premises considered, the said Owen hereby contracts and agrees to convey to W. W. Dudley and L. T. Michener, partners of the firm of Dudley & Michener, the sum of ten thousand dollars ($10,000) out of the fee so placed to the said Owen, immediately upon the collection, or in the exact proportion as the said fees may be collected, it being understood and agreed that this contract is conditioned upon the collection of the fees aforesaid. And in the contingeny of the fees not being provided for by legislation, as per the contract of the Eastern Cherokee Council aforesaid, but upon proof of services, then, and in that event, each of the parties hereto shall prove service independently of the other, and said Owen shall not be expected, out of fees collected for his personal service, to pay the fees to the said Dudley & Michener, but it is understood and agreed that he will, in such a contingency, do what he can to assist Dudley & Michener to collect the fee hereby contracted by them.
The said Dudley & Michener, on their part, agree to give their co-operation in the collection of the money due the Eastern Cherokees and to assist the said Owen as associate counsel in this case.
Witness our hands and seals in duplicate on this 28th day of May, 1902.
(Signed) Robert L. Owen. [Seal]
(Signed) Dudley & Michener. [Seal]
The question in the case turns upon the construction of the following provision of the contract: 'And in the contingency of the fees not being provided for by legislation, as per the contract of the Eastern Cherokee Council aforesaid, but upon proof of services, then, and in that event, each of the parties hereto shall prove service independently of the other, and said Owen shall not be expected, out of fees collected for his personal service, to pay the fees to the said Dudley and Michener, but it is understand and agreed that he will, in such a contingency, do what he can to assist Dudley and Michener to collect the fees hereby contracted by them.' Certain facts were found by the trial court as helping to clear up, with the statute law then existing, the ambiguity of the provision. That court deduced from them a meaning favorable to plaintiff in error. The court of appeals found in them evidence of a different meaning, and reversed the judgment of the trial court. The facts found, in addition to the agreement, are as follows:
'On March 20, 1905, the court of claims rendered a judgment in the case of the Eastern Cherokees against the United States. On April 17, 1905, the defendant Owen addressed the following letter to the plaintiffs:
'The Southern,
'St. Louis, April 17, 1905.
'Dudley & Michener,
'Washington, D. C.
'Gentlemen:--
'I expect to be at Riggs House about April 28th, 1905, and wish by that time you would make up a careful affidavit of services rendered in case under contract of May 28, '02, as I am preparing decree and wish to protect your fee.
'Yours truly,
'R. L. Owen.