Dickerson v. Hamby

• Decision Date: 24 October 1910
• Parties: DICKERSON v. HAMBY
• Court: Arkansas Supreme Court

131 S.W. 674

96 Ark. 163

DICKERSON v. HAMBY

Supreme Court of Arkansas

October 24, 1910

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; reversed.

Judgment reversed and cause remanded for new trial.

McMillan & McMillan, for appellants.

1. The court erred in sustaining the demurrer to the substituted answer. A plea of no consideration is good without stating the circumstances attending the execution of the contract sued on. 34 Ark. 172; 6 Ark. 412; 10 Ark. 273; 11 Ark. 308; 15 Ind. 15; 60 Barb. 346; Newman's Pl. & Pr., 543; 31 Ark. 657; 60 Ark. 612. In the making of a contract between an attorney and client, the law recognizes that the attorney has an advantage over the client, and places on him the burden to show the fairness of the transaction, and the adequacy of the consideration. 73 Ark. 580; 31 Am. Rep. 24, 25.

2. It was error to refuse leave to appellants to amend their substituted answer so as to read like the original answer and it was error to strike the original answer from the files. Kirby's Digest, §§ 5991, 1282 and 6098; 87 Ark. 211; 94 Ark. 27; 94 Ark. 365; Kirby's Digest § 6145; 42 Ark. 59; 64 Ark. 257; 29 Ark. 323; 53 Ark 263; 58 Ark. 504; 59 Ark. 317.

W. V. Tompkins and Hamby & Haynie, for appellees.

OPINION

FRAUENTHAL, J.

This was an action at law instituted by the appellees for the recovery of two notes. One of the notes was for the sum of $ 400, and the other was for $ 500; and the appellees alleged that appellants had paid $ 200 on the former note. The appellants filed an answer, in which they alleged that they were arrested upon the charge of having committed the crime of murder in the first degree, and that they employed the appellees, who were attorneys at law, to represent them in the defense of said charge; that after appellees had accepted the employment they told the appellants that they would be indicted for the crime of murder in the first degree, and tried in the circuit court upon such indictment, and, relying upon said statement and in consideration that appellants would defend them against said charge in all courts to which the same might be carried, they executed the said notes; that appellants were not indicted, but the said charge against them was dismissed by the grand jury; and that they had received no consideration for said notes. They further alleged that one of the appellees came to them at the jail, at their request, while the charge against them was pending in the examining court, and agreed to represent them in that court for $ 110, and that appellants paid to appellees that sum for that service; that appellees told them they would be indicted upon said charge, and the appellants desired to know of them what they would ask to represent them in all the courts upon said charge; that appellees then stated they would make it satisfactory with them; that after they had, through their attorneys, the appellees, announced ready for trial in the examining court, the appellees called them into an adjoining room, and for the first time presented the notes herein sued on and asked them to sign same; that they refused at first to sign them, and told appellees they were taking advantage of them, but because they had no opportunity to then secure other attorneys and because of the undue influence exerted by the appellees upon them, they signed the notes; that some three months thereafter they paid to appellees $ 200 upon the representation made by appellees that they would be indicted, and should prepare for the trial upon the indictment that would be returned.

To this answer the appellees filed a reply, and thereupon the cause proceeded to a trial before a jury, which resulted in a mistrial. The appellees then filed a motion to transfer the cause to the chancery court upon the ground that the answer alleged matters in defense that were only cognizable in a court of equity. Thereupon appellants withdrew the above answer, and filed a substituted answer. In this substituted answer the appellants pleaded that the notes were executed without any consideration therefor. They alleged that they were under arrest upon a charge of murder in the first degree, and that they executed said notes upon the sole consideration that appellees would defend them in the circuit court against said charge in event an indictment should be returned against them and also in the Supreme Court in event they should be convicted in said circuit court upon said charge; and they alleged that no indictment was returned against them, and that therefore appellees did not, and had no occasion to, so defend them.

To this answer the appellees filed a demurrer, which was by the court sustained. The appellants then asked permission to amend said substituted answer by inserting therein averments that the notes were obtained by fraud; and the court refused to permit them to so amend their answer upon the ground that the allegations of fraud had been made in appellant's original answer, and that they had withdrawn said answer upon the announcement of the court that it would sustain the appellee's motion to transfer the case to the chancery court because said answer set up an equitable defense. The appellants then filed the original answer by way of amendment of the substituted answer, and asked that the cause be transferred to the chancery court. This answer was stricken from the files by the court; and upon permission being asked by appellants the court refused to allow them to file any further pleading. Thereupon the court rendered judgment for the amount due on said notes.

In determining whether a pleading, complaint or answer makes sufficient allegations to constitute a cause of action or to state a defense, every fair and reasonable intendment must be indulged in to...