Bryant v. Lewis, 7434.

• Decision Date: 16 April 1930
• Docket Number: No. 7434.,7434.
• Citation: 27 S.W.2d 604
• Parties: BRYANT v. LEWIS et al.
• Court: Texas Court of Appeals

27 S.W.2d 604

BRYANT v. LEWIS et al.

No. 7434.

Court of Civil Appeals of Texas. Austin.

April 16, 1930.

On Motion for Rehearing, May 14, 1930.

Appeal from District Court, Lampasas County; Few Brewster, Judge.

Action by H. F. Lewis and W. H. Browning against Jennie Bryant. From an adverse judgment, the defendant appeals.

Judgment reversed in part and in part reversed and remanded, with instructions.

J. Mitch Johnson and N. C. Walker, both of San Saba, for appellant.

M. M. White, of Temple, A. L. Curtis, of Belton, and White, Wilcox, Taylor & Gardner and Robert T. Miller, Jr., all of Austin, for appellees.

BAUGH, J.

Appeal is from a judgment for $3,828, based on a jury finding in favor of appellees, H. F. Lewis and W. H. Browning, against appellant, for attorneys' fees. The case arose under substantially the following facts: George Bryant, a bachelor, who resided at Lometa, in Lampasas county, Tex., died in August, 1927. At that time H. F. Lewis was, and for several years had been, his attorney. Miss Jennie Bryant, his niece, had for some 35 years prior to his death, and since she was a girl, lived with and made a home for him with the understanding or agreement that upon his death he would devise to her all his property. After his death, the appellant, Jennie Bryant, together with another niece, Mrs. Grace Blackwell, who had also lived with them and been reared by Miss Jennie from babyhood, came to the office of H. F. Lewis at Lampasas, in search of George Bryant's will. None was found, and, after many trips to see him, H. F. Lewis was employed by appellant to establish and collect her claim against the estate of George Bryant for services rendered to him, and to recover her interest also as one of his heirs. A written contract was entered into on January 13, 1927, whereby Lewis was to receive one-third of all he recovered for her as a creditor of the estate, 10 per cent. of the amount he should recover for her as an heir, plus a reasonable attorney's fee, if suit were necessary to recover her inheritance. The estate of George Bryant was valued at $74,000, with no claims against it save that of appellant and one of Mrs. Blackwell, also a claimant for services rendered to him and costs of administration.

Though the contract of employment was with Lewis, and an undivided one-half interest therein assigned by him to W. H. Browning, it appears that appellant at the time either herself employed, or fully agreed to the employment of W. H. Browning to represent her and be associated with Lewis, with the understanding that they should share equally in the fee provided for in the contract. These two attorneys were not partners, but practiced independently and maintained separate offices. In February, 1927, appellees prepared and presented to the administrator of George Bryant's estate appellant's claim for $20,400.

Shortly after making said contract with appellant, the appellee H. F. Lewis entered into another contract with Mrs. Grace Blackwell to present her claim against the estate of George Bryant in the sum of $10,000, and was to receive for his services one-third of all sums recovered by him for her both as a creditor and as an heir of George Bryant. About two months after they were employed by appellant, during which time appellees diligently prosecuted appellant's claims both as creditor and heir, they were discharged by appellant. She employed other attorneys to represent her, who subsequently established her claims against the estate of George Bryant for $28,000, resisted the claims of Mrs. Blackwell, presented by Lewis, and reduced same to the sum of $3,000.

Suit was upon a quantum meruit for services rendered. Two issues were submitted to the jury. To the first they answered that appellees' services to appellant were reasonably worth $3,828. In answer to the second, they found that appellant "agreed or consented for the plaintiff, H. F. Lewis, to represent Mrs. Grace Blackwell in the prosecution of her claims against said George Bryant's estate." The defenses urged by appellant on the trial, and the contentions here made, as stated in her brief, are:

"(a) Appellee Lewis having accepted employment from Mrs. Grace Blackwell to urge a claim for $10,000.00 against the estate of Geo. Bryant, deceased, that was adverse to the claim that he had agreed to urge for appellant against said estate he thereby breached his contract with appellant, and even if such adverse employment was entered into with the consent of appellant, appellees were not entitled to recover anything for services rendered — it being contrary to legal ethics and public policy for an attorney at law to represent adverse interests where it is contemplated that suit will have to be brought to enforce and protect such claims and interests, even with the consent of the parties.

"(b) That if under any circumstances, appellee Lewis would be permitted to represent the appellant and said Mrs. Blackwell, and recover for services rendered such parties, that he or some one for him, must have fully explained to appellant the nature and extent of interest that he was to represent for Mrs. Blackwell, and the manner in which such adverse interest would affect her claim, and after being assured that appellant fully understood the nature of such conflicting interest, have secured her consent to such employment, and the evidence being conclusive that he did not do this, the court should have granted the request for a peremptory instruction."

We sustain both of these contentions as to appellee H. F. Lewis. But they do not apply to appellee W. H. Browning. He had no interest in and no connection with the employment of Lewis by Mrs. Blackwell, nor did he have any interest in that claim. His employment was restricted wholly to the claims of Miss Bryant. Nor was payment for his services to her dependent upon a right in Lewis to recover for his services. It is true that the contract was made in the name of Lewis and an undivided one-half interest therein assigned by him to Browning, but suit is not upon said contract. And the undisputed testimony shows that appellant went to W. H. Browning before her contract with Lewis was signed, sought to employ him to represent her, and that, because of her negotiations with Lewis, he (Browning) declined to do so, unless associated with Lewis; that thereupon said employment or representation of her by them jointly was entered upon, not as partners, but as associate counsel, with her full knowledge, consent, and approval, if not at her affirmative request. Under such circumstances Browning was not in any manner disqualified from continuing to represent appellant, even though an independent act of Lewis did disqualify the latter. Browning's continued representation of appellant was not made dependent upon the continued representation of her by Lewis also.

What we shall say, therefore, concerning conflicting interests applies only to the representation of Lewis. Nor does it appear that there was any intentional wrongdoing by said appellee. Public policy and the standards of the profession, however, demand a close scrutiny of any improper conduct by attorneys in their relationship to their clients, and, however honest his intentions may be, an attorney should never put himself "in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent." Strong v. International Building, Loan & Inv. Union, 183 Ill. 97, 55 N. E. 675, 676, 47 L. R....