The opinion
DISSENTING OPINION.
MoCuluoch, C. J. The fact that appellant’s relations as attorney for the district were ended by the acceptance of his offered resignation should not be considered in determining the amount of his earned compensation, for it is undisputed that his resignation was not accepted within a reasonable time. He tendered his resignation in February and offered to give up the retained portion of his fee, $2,000, if they would release him, but the commissioners declined to accept the resignation and induced appellant to go on with the work, which he did for a period of nearly ten months. In the meantime he proceeded with preparations for additional bond issue, which would have entitled him to further compensation under the contract.
This a case where there is a contract fixing the amount of the services, and in that respect it is unlike the case of Bayou Meto Drainage District v. Chapline, 143 Ar. 446, upon which the majority seem to rely in reaching their conclusion. In the Chap-line case, there being no contract, it was an original question to be determined by the court in the trial of the suit what fee should be paid, whilst in the present case there was a contract, and the inquiry is confined to the question whether or not the-contract was an improvident one so as to justify the court in disregarding it.
In this kind of a casé we should start with the assumption that the commissioners have not made- an improvident contract — in other words, that they have not disregarded their duty, and, unless the evidence shows that the contract is so grossly improvident as to stamp it .as a fraud, then the action of the commissioners in making such a contract should not be disturbed. I do not understand the law to be that, where there is a contract made by those acting under authority of law, judges are permitted to substitute their own judgment .and to pare down the value of services so as to conform to what they would have done if called upon originally to make such a contract.
A contract is the result of negotiation, .and a party to it must necessarily consider what the other party is willing to concede in the way of terms. This element of a contract must be taken into consideration in determining whether the commissioners were, guilty of making an improvident contract. The agreed price for the services may have been more than the commissioners themselves felt that they ought to pay, and more than we think they should have paid, but this does not necessarily mean that the contract is so improvident in its terms as to justify the court in canceling it on account of fraud. It is undisputed that there was no actual fraud in the execution of this contract. It is shown, without contradiction, that appellant had acted as attorney for other districts at a fee in excess of what was allowed by the commissioners in this instance, and for a time he insisted upon the same commission, that is to say, three per cent, on the bond issue, but very reluctantly reduced it to two per cent, at the earnest solicitation of the commissioners.
The majority opinion seems to minimize the value of appellant’s services by emphasizing the fact that much of his work was clerical. It is true that appellant, in his testimony, narrates many ■ instances of purely clerical work, but this was done to show that he more than performed his duty. He was employed as an attorney to perform professional services, and not for the purpose of performing merely clerical services, and his compensation was fixed for that kind of service.
This project involved an expenditure of $350,000 or more, and appellant was engaged in the performance of his services for about a year and a half.- No complaint was ever made that his services were unsatisfactory, and no such complaint is made now. Appellant offered to resign because he felt that the compensation was' not sufficient, and he offered to give up $2,000 of his fee if the commissioners would accept his resignation, but they refused to accept it, and insisted upon his going on with the work, which he did. It is true that one of the.commissioners was opposed at the start to the employment of appellant, and this commissioner wanted to employ another attorney, but the other two commissioners insisted on the employment of the appellant, and, as before stated, there was never any complaint about the character of the appellant’s services. The well-established rule is that, “not only the amount and character of the services and the results attained, but also the professional ability and standing of the attorney, his learning, skill and proficiency in his profession and his experience, may be considered in estimating the reasonable value of his services.” Rachels v. Doniphan Lumber Co., 98 Ark. 529 ; Davis v. Webber, 66 Ark. 199 ; Bayou Meto Drainage District v. Chapline, supra.
The evidence does not show that the fee fixed by the contract was exorbitant. It is true that the com.mismissioners introduced a witness, an attorney of Woodruff County, who testified that he offered in advance to act as the attornev of this district for a fee of $1,500, and that he thought this was a reasonable fee, but he does not state in his evidence that that was the customary fee for such services. Appellant himself testified in the case, and showed that it was customary to charge at least two per cent, of the amount involved, and that he had in several instances charged three per cent., and that such was the custom. Another attorney in that county testified that he had been engaged in this kind of service, and that the fee fixed in appellant’s contract was reasonable and in accordance with the general custom in the employment of attorneys by road districts. It is certain that the board of commissioners have never considered the fee excessive, and do not so consider it now, for, upon the acceptance of appellant’s resignation, they paid the $2,000 which should have gone to appellant under his contract, to another attorney for finishing up the services. Of course, the making of an improvident contract with the last attorney does not justify a previous one of the same character, but it has much force in determining whether or not the first contract was really improvident. I do not think the evidence justifies the cancellation of his contract as being a fraud upon the rights of the district.
Mr. Justice Humphreys concurs in these views.