On the 5th day of August, 1885, the W. O. Tyler Paper Company (of which the appellant is the assignee in insolvency), as the party of the first part, and the appellee, as party of the second part, made this agreement:
"Whereas, the party of the first part desire to prosecute, for the defense, a suit now pending in the United States Circuit Court for the Northern District of Illinois, entitled The Hammerschlag Mnfg. Co. v. The F. W. Butler Paper Co. and George W. Bancroft, and of employing the party of the second part as their attorney therein.
“ Now, therefore, the parties have agreed as follows:
“ 1. The party of the first part, in consideration of the promises and agreements hereinafter made, and the services of the party of the second part, agree to pay the party of the second part the sum of three thousand ($3,000) dollars as attorney fees in said suit, and also to pay all expenses of every kind incurred in said suit from the time the motion for preliminary injunction was granted to the determination thereof, including traveling expenses, witness fees, planting, costs of exhibits, and all expenses which are common to patent litigation.
“ 2. The party of the first part further agrees that, if at any time during the progress of said suit, it fails to advance the money necessary to pay the aforesaid expenses as they accrue, or notify the party of the second part of its intention not to further prosecute said suit, then the party of the first part agrees to pay the party of the second part the sum of fifty ($50) dollars for each and every day’s service he may-have rendered in said suit up to the date of said notice.
“ 3. The party of the second part, for and in consideration of the promises and agreements herein made, agrees to devote his professional services, and to the best of his abilities, in defending the aforesaid suit to a final termination before the Supreme Court of the United States, if necessary to establish the supposed rights of the aforesaid defendants, or either of them, and that he has no claim upon the aforesaid three thousand ($3,000) dollars (except as provided for in clause 2 of this agreement), until a decision shall have been rendered in the United States Circuit Court for the Northern District of Illinois, or the Supreme Court of the United States, by which the defendant, George W. Bancroft, has the right to manufacture paraffine waxed paper under his patent involved in said suit.”
The appellant objects that this was an illegal, and therefore void, agreement, as being beyond the corporate powers of the company, and champertous. Without discussion those objections are overruled.
The company failed in August, 1887, and the next month the United States Circuit Court for the Northern District of Illinois decided the case mentioned in the agreement adversely to the interests of these parties. The appellant furnished no money for expenses; over $10,000 had already been expended; appellee had. received no fees, and appellee filed his claim against thp appellant for his per diem, under the second paragraph of the contract, which was allowed—247 days, $12,250.
The construction upon which that allowance was made was that the company was, under the third paragraph of the contract, bound to carry the case to the Supreme Court of the United States if the decision of the Circuit Court was adverse, or pay appellee, if he was ready and willing to perform on his part, §50 for every day he had been employed in the case. This construction is right, with the limitation that the per diem can not exceed the whole reward for success.
Besides the inconsistency of requiring a party to pay more for non-acceptance of performance of a contract than for performance itself, the third paragraph treats the per diem as a claim that might arise, under which appellee might be entitled to part, or all, of the $3,000. The words are “no claim upon the aforesaid three thousand dollars (except as provided for in clause 2 of this agreement).” If the per diem is a claim upon, it can not exceed the $3,000. If within twenty days after this opinion is filed, the appellee remits all above $3,000 of the sum allowed him, the judgment of the County Court for $3,000 will be affirmed; if not, it, will be reversed; in either event, the appellant to recover his costs in this court.