BAXTER v. BILLINGS et al., 83 F. 790

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. A contract for the professional services of a particular attorney is an agreement of personal trust and confidence. Its chief consideration is the command which the retainer gives to the client over the learning, ability, skill, and experience which his chosen solicitor possesses. An agreement with a lawyer to commence and prosecute a suit is of the same character as a contract with an author to write a book.

If the author dies, or abandons his work when it is half written, no substitute or successor can complete the book, and recover its price, because the literary ability of the original author, for the use of which the publisher contracted, has not been, and could not be, applied to it.

If a lawyer dies before he has commenced, or before he has prosecuted to a decree or settlement, a litigation which he has undertaken to conduct for a certain compensation, his contract is at an end, and no one can recover the price it stipulated, because no substitute or successor can supply to his client the use of the learning, ability, and integrity for which he contracted.

If, in the case at bar, Margaret Billings and Margaret Cavner had made their contract of June 23, 1887, with Yonley alone, who died in January, 1888, before the successful suit was instituted, it is clear that there could have been no recovery of the compensation stipulated by that contract, either by Baxter or by any other substitute or successor of Yonley, however successful he might have been in its prosecution, because the services contracted for — the services of Yonley — were not rendered. The same fatal objection presents its protest to the actual contract.

That was a contract for the services of both BaxterandYonley. Under that agreement their authority to commence and prosecute the suit was a joint authority, and their duty was a joint duty. A joint authority conferred on two persons can only be exercised by the act of both. An obligation to furnish and apply to the conduct of a lawsuit the learning, ability, and experience of two particular attorneys is not performed by furnishing the services of one of them, although the services of many others of equal or superior ability are also furnished.

When one agrees to pay a certain compensation for the services in a specified matter of two or more attorneys or agents whom he selects or names, that contract is not performed, and that compensation cannot be recovered, when any one of them dies, or abandons the agreement, before it is substantially performed, because the services of that one have not been furnished. McGill’s Creditors v. McGill’s Adm’r, 2 Metc. (Ky.) 258, 260; Morgan v. Roberts, 38 Ill. 65, 85; Moshier v. Kitchell, 87 Ill. 18, 21; Wright v. McCampbell, 75 Tex. 644, 648, 13 S. W. 293; Martine v. Society, 53 N. Y. 339, 342; Salisbury v.

Brisbane, 61 N. Y. 617; Insurance Co. v. Wilcox, 57 Ill. 180, 186. The result is that the death of Yonley in January, 1888, is a complete bar to the claim.of the appellant to recover, under the contract of June 23,1887, one-half of the proceeds of the suit instituted in April, 1888. There are two allegations found in the bill upon which the appellant seems to rely to escape from this inevitable conclusion.

One is that, when the contract was made, Margaret Billings and Margaret Cavner especially desired' to obtain the services of the appellant, placed special reliance upon his skill and ability as a lawyer, and associated Yonley with the appellant, and made him a party to the corn-tract, at his suggestion. But this averment is not material. It contains no allegation of fraud or mistake in making the contract.

The fact remains that the written contract is not for the skill and services of Baxter alone, but for those of Baxter and Yonley; and, where the parties have deliberately put their engagements into writing in such terms as to import a legal obligation, it is conclusively presumed that the whole enga.gem.ent of the parties and the nature and extent of their undertaking is contained in the writing. Wilson v. Ranch Co., 36 U. S. App. 634, 20 C. C. A. 244, 249, and 73 Fed. 994, 999.

The other allegation is that after the death of Yonley, with the consent of Margaret Billings and Margaret Cavner, the appellant associated with himself such persons as would, in his judgment, best enable him to caray into effect the agreement and the wishes of the clients; that he commenced and prosecuted the suit to a successful issue with their consent, and did every act which it was incumbent on him to do in the premises.

But this averment falls far short of an allegation that Margaret Billings and Margaret Cavner, in consideration of these services, undertook or agreed to pay to Baxter alone, or to Baxter and his associates, the same compensation which they had agreed to pay for the services of Baxter and Yonley; and without such an allegation the averment is immaterial. Yvhen Yonley dual, the contract of June 23,1887, was at an end. It had no force or virtue after the instant of his decease.

Before Margaret Billings and Margaret Carrier could be bound to pay to Baxter or to him and his associates the price which they had agreed to pay for the services of Baxter and Yonley, there must be a new contract between new parties, as complete aud definite as that which was originally made. There is no averment in this hill that there was such a contract. The ouly legal effect which the allegations to which we have referred could have would be to charge Alargare! Billings and Margaret Cavner, in a proper case, with a liability to pay to Baxter and his associates what their services were reasonably worth.

This bill was not brought for that purpose. It contains no prayer for the recovery of that measure of compensation. It eoniains no allegation of the value of the services. We are unable (o find any ground upon which it can he maintained, and the decree below must be affirmed, with costs. It is so ordered. ‘