Fowler v. Iowa Land Co.

• Decision Date: 08 June 1904
• Citation: 99 N.W. 1095,18 S.D. 131
• Parties: FOWLER et al. v. IOWA LAND CO., Limited. et al.
• Court: South Dakota Supreme Court

99 N.W. 1095

18 S.D. 131

FOWLER et al. v. IOWA LAND CO., Limited. et al.

Supreme Court of South Dakota

June 8, 1904

Appeal from Circuit Court, Fall River County.

Action by James W. Fowler and others against the Iowa Land Company Limited, and others. From a judgment in favor of plaintiffs defendant land company appeals. Affirmed.

Haney J., dissenting.

Charles W. Brown, for appellant. C. L. Wood, James W. Fowler, and Fred H. Whitfield, for respondents.

CORSON P. J.

This is an action by the plaintiffs, as attorneys at law, to recover $5,000 for legal services alleged to have been performed by them for the defendants. The case was tried to a jury, which rendered a verdict against the defendant the Iowa Land Company, Limited, for the sum of $3,500, and from the judgment and order denying a new trial that company has appealed to this court.

The facts in this case are quite similar to those in the case of Pilcher v. S. C. S.D. & T. Co., 12 S.D. 52, 80 N.W 151; the only material difference being that the judgment in that case was recovered against the trust company, while in this case the judgment was recovered against the Iowa Land Company, the beneficiary in the trust deed that was foreclosed in the action of the safe deposit company against the Dakota Hot Springs Company. The facts applicable to this case were so fully stated in the Pilcher Case that we do not deem it necessary to restate them in this opinion.

It was clearly shown on the trial of this case that the plaintiffs were retained by J. H. Swan, who they claim was the agent as well as the attorney for the Iowa Land Company, and fully authorized to retain them. It is further shown by the evidence that under their retainer they performed services resulting in enabling Swan, as the agent of the trust company and the land company, to retain possession of the Hot Springs Company's property, consisting of the Evans Hotel, plunge bath, and other valuable properties, during the foreclosure proceedings, and during the time for redemption subsequent to the sale of the same. There was some conflict as to the value of the services rendered by the plaintiffs, but the evidence was clearly sufficient to warrant the jury in finding them to be of the value of $3,500. The only question, therefore, about which there is any serious controversy, is as to whether or not J. H. Swan had authority to retain the plaintiffs to assist him in regaining and retaining the possession of the Hot Springs Company's property during foreclosure proceedings.

The appellant contends that Swan, as the attorney for the trust company, was not authorized to employ the plaintiffs to assist him, and that his contract with them is not binding upon the Iowa Land Company, Limited. It is contended, however, by the respondents that Swan was not only the attorney, but also the agent, of the Iowa Land Company, and did have authority to bind that company, and did bind it by the contract made. We are of the opinion that the respondents are right in their contention. It clearly appears from the evidence, independently of the testimony of J. H. Swan, that he had acted as the sole attorney of the Iowa Land Company in its business in this state for a number of years; that the loan which the bonds of the Hot Springs Company were given to secure was negotiated by him; that he took possession of the Hot Springs Company's property, appointing managing agents, who accounted to him for the receipts and disbursements; and that during the foreclosure proceedings and the time for redemption he retained possession of the property. Mr. Dunlop, one of the firm of Benson & Co., general agents for the Iowa Land Company in this country, says: "I knew Col. J. H. Swan in his lifetime. I became acquainted with him in 1884. He was a lawyer practicing in Sioux City, and was a member of the firm of J. H. & Charles M. Swan, and later of Swan, Lawrence & Swan, up to the time of his death, in 1899. The Iowa Land Company, Limited, relied upon said J. H. Swan for many years last past, and up to the date of his decease, to tend to all its lawsuits and legal business in the state of South Dakota." Charles M. Swan, a son of J. H. Swan, a member of the firm Swan, Lawrence & Swan, states that J. H. Swan was for many years, and until the time of his decease, sole attorney of the Iowa Land Company, Limited, and, as such attorney, was specially in charge of the interest of the Iowa Land Company, although said Swan frequently signed the firm name of Swan, Lawrence & Swan to legal papers in cases which said J. H. Swan brought for said Iowa Land Company; that all compensation for legal services rendered by that company was paid to said J. H. Swan, said firm having no interest therein. It further appears from the evidence that Col. J. H. Swan negotiated the loan made to the Hot Springs Company by the Iowa Land Company, and that he drew up the papers requiring the trust company to proceed and foreclose the mortgage and take possession of the property on behalf of the Iowa Land Company and C. W. Benson & Co. This evidence was undisputed. It will thus be seen that J. H. Swan was the general attorney of the Iowa Land Company, and had exclusive management of its legal business in this state, for a number of years. It is true that, in taking possession and in appointing agents to hold and manage the property, he did so in the name of the trust company, the nominal plaintiffs in the foreclosure proceedings. But as the trust company had no actual interest in the property, except as trustee, and it was simply acting in its capacity as such trustee for the Iowa Land Company and Benson & Co., the general agents of the land company in this country, he was, in effect, acting both as agent and attorney for the Iowa Land Company, the real beneficiary in the trust deed. As the attorney of that company, therefore, though nominally acting as attorney of the trust company, he was clothed with authority to adopt such means and employ such assistants as were necessary in foreclosing the trust deed, and in securing the Iowa Land Company the amount due to it. Where, as in the case at bar, an attorney who is the general attorney of a foreign corporation, conducting its legal business generally in this state, is proceeding to foreclose a trust deed authorizing him to take possession of the property in case of default, such an attorney is vested with all the powers necessary to make the foreclosure effective for his principal, and he has implied authority as such attorney to do every act necessary, proper, and usual in the ordinary course of business in conducting such foreclosure proceedings. Section 1677, Civ. Code; Pilcher v. S. C. S.D. & T. Co., supra. In the case at bar it would seem to have been necessary and proper to take and retain possession of the large amount of real and personal property included in the trust deed during the pendency of the foreclosure proceedings and during the time for redemption. Clearly the most effectual method of accomplishing this object was to appeal from the order and judgment of the state circuit court appointing a receiver, and filing supersedeas bonds, and this could only be done by taking an appeal in the name of the Hot Springs Company, which declined to proceed further with the action. It was therefore eminently proper to retain the plaintiffs, who had been attorneys in the action in the state circuit court for the Hot Springs Company, for the purpose of taking the appeals to the Supreme Court in the name of that company, and to prosecute the appeals in that court. As before stated, the whole proceeding to foreclose the trust deed and retain possession of the property was for the benefit of the Iowa Land Company, the real party in interest in the foreclosure proceedings.

It is further contended by the appellant that the conduct of the plaintiffs' counsel in the argument of the case to the jury was such an irregularity as prevented the appellant from having a fair trial, and entitled it to a new trial. There seems to be some uncertainty as to the language used by counsel in his argument to the jury, and Mr. Wood, one of the attorneys for the plaintiffs, who, it is alleged, made the disparaging remarks as to one of the agents of the Iowa Land Company, in a lengthy affidavit, denies that he made the remarks charged to have been made by him, and he is supported by the affidavits of the other attorneys of the plaintiffs in the action. In view of this uncertainty, and the fact that the trial court has passed upon the question on a motion for a new trial, and denied the same, we...