Bryan v. Ross

• Citation: 214 S.W. 524
• Decision Date: 04 June 1919
• Docket Number: (No. 1496.)
• Parties: BRYAN v. ROSS et al.
• Court: Court of Appeals of Texas

214 S.W. 524

BRYAN v. ROSS et al.

(No. 1496.)

Court of Civil Appeals of Texas. Amarillo.

June 4, 1919.

Rehearing Denied July 2, 1919.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Deck Martin against J. L. Ross and others, wherein E. P. Bryan intervenes. Judgment for defendants upon setting aside a verdict for plaintiff and intervener appeals. Reversed and remanded.

E. P. Bryan, of Dallas, for appellant.

Harry P. Lawther, T. F. Lewis, and J. R. Haynes, all of Dallas, for appellees.

BOYCE, J.

This suit was originally brought by Deck Martin in 1905 to recover certain property in the city of Dallas. The plaintiff secured a judgment which was reversed on former appeal of the case. Ross v. Martin, 128 S. W. 718, 104 Tex. 558, 140 S. W. 432, 141 S. W. 518. While the appeal was pending the defendants in the suit paid the said Deck Martin $50 for a conveyance of the property to them. After the reversal of the case E. P. Bryan intervened therein, alleging that he had been employed as attorney by the said Deck Martin to prosecute said suit under power of attorney, which authorized him to demand, sue for, and recover such lands, and which granted and conveyed to him a two-thirds undivided interest in such lands as might be recovered in said suit; that defendants knew such fact and secured the conveyance from the said Deck Martin with intent to defraud said intervener of his interest in said lands. Wherefore intervener prayed that he be allowed to intervene, and that he recover a two-thirds interest in the land involved in the suit. The jury, in response to special issues submitted, found such facts as would have authorized a judgment thereon for Deck Martin for the recovery of an undivided one-half interest in the land but for his settlement with the defendants. No issue as to the right of the attorney to maintain the suit and recover for his own benefit was submitted. The trial court set aside the verdict of the jury, and entered judgment for the defendants, evidently on the ground that the intervener had no such interest in the land as would authorize him to proceed with the suit after the settlement with Deck Martin. Appellant's complaint is to this action of the court.

Deck Martin, by a written power of attorney, employed the intervener and another, whose interest the intervener acquired prior to the intervention herein, to sue for and recover any lands to which he might be entitled in the state of Texas, and empowered the said attorney to sell such property for such price and on such terms as should seem proper to him, and to appear for the grantor in any and all courts of the state of Texas, and to sue for said lands and to compromise or otherwise adjust any adverse claim or claims thereto. Said power of attorney, after reciting that the said attorneys "will be at considerable trouble and expense in finding out and removing the cloud or clouds from said land," continued as follows:

"Therefore, as remuneration to them, we hereby give, grant, sell, and convey unto them, the said J. J. Hart and E. P. Bryan, a two-thirds undivided interest of, in, and to any and all lands, money, or other valuables so recovered for us. Said lands shall be sold and the money divided, or they may be partitioned after being cleared up of all adverse claims whatsoever as to our said attorneys shall seem best."

The power of attorney was duly recorded, and the defendants, at the time of their settlement with Deck Martin, had knowledge thereof, and that the intervener was acting thereunder in the prosecution of the suit. The settlement was made with Deck Martin without the knowledge and consent of the intervener.

In support of the disposition of the case as made by the trial court, appellee asserts that the intervener had no such interest in the land as would prevent the power of attorney from being revoked by Deck Martin; and that upon its revocation the attorney could not thereafter proceed with the suit. A great many authorities, dealing with the question as to when a power of attorney is revocable, may be found. Certain general principles are recognized by them all, but there is considerable divergence in the application of these principles. Mechem on Agency (2d Ed.) §§ 561-581. It is universally held that a bare power of attorney, in which the agent's only interest is in the performance of the services therein contracted to be rendered in order that he may earn the stipulated compensation, is revocable at the will of the grantor. But where the power is given as security, or is coupled with an interest, then it is irrevocable —in the latter instance, even by the death of the grantor. Hunt v. Rousmanier, 8 Wheat. 203, 5 L. Ed. 589; Mechem on Agency, supra. So that we have to consider first, whether the power of attorney in this case was given as security, and, second, whether it is coupled with an interest.

In most of the cases where the powers were protected from revocation on account of being given as security the debt or obligation secured was independent of the debt incurred for expenses and compensation for services under the contract of employment itself; but we see no reason to doubt that where the contract of employment contemplates the incurring of expenses and rendition of services over a period of time prior to the realization of the proceeds of the exercise of the power, out of which the agent is to receive his compensation, and it appears that one of the purposes of the granting of the power is to secure the agent in the payment of compensation for such services and expenses incurred, then the power would not be revocable at the will of the grantor. Mechem on Agency, § 567. The employment of attorneys in cases of this kind is usually in contemplation of protracted litigation, and the client is either unable or unwilling to pay a cash certain fee, and where the contract of employment in such cases grants the attorney such large powers as in this instance, and assigns an interest in the result of the services contracted to be performed, it would, we think, be a reasonable construction of the contract to conclude that it was intended as a security to induce the attorney to render such services. If this were true, such contract would prevent the revocation of the power after a partial performance thereof. We have found no authorities that place a holding of irrevocability of such contract on this express ground, and, since the conclusion we reach on our consideration of the second phase of the question is sufficient to dispose of the question generally, we need not make a more definite statement of our conclusion as to this particular branch of the question.

A statement made by the Supreme Court of the United States in the case of Hunt v. Rousmanier's Adm'rs, 8 Wheat. 203, 5 L. Ed. 589, as to what is meant by "interest," as that word is used in the expression "power coupled with an interest," is quite generally accepted by later authorities as furnishing the test for determining the character of a particular power under investigation and has been approved by the courts of this state. Daugherty v. Moon, 59 Tex. 397. The statement referred to is to the effect that the interest thereby meant is "an interest in the subject on which the power is to be exercised," and not "an interest in that which is produced by the exercise of the power." The difference in the authorities is not in the statement of the rule, but in the construction of the effect of various powers of attorney in connection therewith. An exhaustive treatment of the subject will be found in the reference we have made to Mechem, and we will refer only to some of the cases that have construed instruments most nearly alike to the one we are considering. In the case of T. & P. Ry. Co. v. Vaughan, 16 Tex. Civ. App. 403, 40 S. W. 1065, in which writ of error was denied, Peter Waters employed H. W. Vaughan as attorney to prosecute a suit for damages against the T. & P. Railway Company for personal injuries sustained by the said Waters. The contract, which was very similar to the one in this case, authorized the attorney to prosecute the suit in the name of Waters, and to compromise and settle it, and contained this provision:

"In consideration of the faithful performance of the duties imposed upon him as my attorney in the prosecution and collection of my claim and suit aforesaid, I hereby sell and convey and agree to pay and deliver to said Vaughan one-half of whatever sum may be realized out of and collected from said railway company, whether through compromise or by judgment of the courts, by reason of the injuries done me by said company as aforesaid."

After the institution of the suit in his name, Waters settled with the railway company and the attorney intervened and sought to further prosecute the suit, and it was held that the words we have just quoted were "a sufficient transfer to Vaughan of one-half of the cause of action," and that "he was not bound by any settlement...