(concurring).
My colleagues contend that the parties are confused as to what the real issue actually was, I think the issue is the construction of a simple contract. This contract is spelled out by the Board’s resolution and appellant’s letter set forth in Judge Hood’s opinion. The two must be considered together in order to ascertain the terms of the contract.
First, the parties agree that a relationship of attorney and client is created on a retainership basis. The contract goes on to state that additional payments will be made in the event of exceptional cases or major projects, plus an additional term requiring a previous agreement between the. parties as to what cases were to be considered exceptional or major so as to entitle the attorneys to additional compensation.
In our role as an appellate court, it is now our function to construe this contract in accordance with the law of this jurisdiction under the rule of stare decigis.
I feel that the contract is clear and unambiguous. This is clearly a question of law as we recently stated in Friedman v. Thomas J. Fisher & Co., D.C.Mun.App., 88 A.2d 321.
There was a disagreement between the parties as to whether the rent cáse was an exceptional one, the attorneys contending it was while the cooperative claimed it was not. This presented • a question of fact which was within the sole province of the trial court. Its determination of this factual issue precludes us from reconsidering it.
My colleagues would go into great detail to explain the meaning of the term “agreement” as it is defined by the text writers. I feel, however, that the inclusion of the additional contractual condition “we will previously agree with the President and the Board * * * ” is patently clear that an obligation existed on the part of the attorneys to enter into such a previous agreement, whenever in their opinion the cooperative requested them to handle what they considered to be a major project or one that they felt might develop into one. By their view the majority opinion makes this “agreement” a term which I feel is contrary to the terms of the contract as I have heretofore described it.
The majority opinion by holding that “if the rent case was in fact exceptional” the attorneys would not be precluded from recovering is, to my mind, flying in the face of the contract as made by the parties. It is an elementary principle that the court may not make a new contract for the parties. *328This my colleagues have attempted to do by saying that in the absence of an agreement the attorneys could still recover if the rent case was in fact exceptional. The fact is the contract required a previous agreement, and we can not ignore the words of the contract -but are bound by them.
In reading the record I fail to find that Mr. Roberts anticipated any difficulty in reaching an agreement on what might be considered an exceptional case which would warrant additional compensation. On the contrary, I am of the opinion that Mr. Roberts was experiencing extremely good relations with the Board of Directors at the time he wrote the letter. I should like to point out that the majority are inconsistent at this point in their opinion. They previously stated that a recovery could be had in exceptional cases even without a previous agreement, while here they state that Mr. Roberts very properly stated in his letter that in the event of exceptional cases there would be a previous agreement as to additional payments.
I am compelled to say that in this case the parties were governed by the contract as stated above. In construing the condition that a previous agreement would be had as to additional compensation in exceptional cases, I find that if appellants thought this rent case was an exceptional case they should have made such a previous agreement. By their failure to do so they are precluded from recovering under the contract.