Hardin v. Baynes
| Decision Date | 01 December 1944 |
| Docket Number | 14931. |
| Citation | 32 S.E.2d 384,198 Ga. 683 |
| Parties | HARDIN v. BAYNES. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 13, 1944.
Miss Alene Bartlett Hardin filed an equitable petition in the superior court of Jasper County against S. H Baynes, praying for injunction, for cancellation of a described timber lease, covering timber in Morgan County, for damages, and for general relief. An amendment to the petition was offered which was allowed in part and disallowed in part. On an interlocutory hearing, before the return term, the judge sustained a general demurrer and dismissed the petition as amended. The plaintiff excepted.
The petition as amended alleged: The defendant is a resident of Jasper County. The plaintiff is the owner of a tract of land in Morgan County, consisting of 405 1/2 acres, known as the Lovin Place.
In August, 1943, the defendant represented the plaintiff in a suit against E. C. Kelly, in the superior court of Jasper County, he being associated with the plaintiff's leading counsel.
The plaintiff has lived in Macon for many years, is a kinswoman of the late Judge C. L. Bartlett, and now lives with his widow, Mrs. C. L. Bartlett. The plaintiff, since the death of Judge Bartlett in 1938, has undertaken to attend to the business affairs of Mrs. Bartlett and of herself in Jasper and Morgan Counties, which has been unusually difficult because of sickness and because of living at a distance from these points.
At the time of the plaintiff's employment of the defendant in the Kelly case, she explained to him her difficulties about said lands and properties, and that she desired a local lawyer to assist her in these matters. The defendant at that time professed great interest in assisting her in such matters as removing trespassers from an old family graveyard and as to a contest over the alleged purchase price of certain Jasper County lands belonging to Mrs. Bartlett.
On August 10 and 11, 1943, the defendant, while representing the plaintiff in the trial of said Kelly case, constantly professed his desire to assist her in the sale of the Dickenson place in Jasper County, a part of which was the subject of the litigation in the Kelly case.
The defendant was well aware that the plaintiff had not been on said lands for many years, and had no knowledge of what timber was on the lands, the value thereof, or the value of the land, and that she had no knowledge of what timber was on the Morgan County land, nor the value thereof. The defendant is an expert timber man, and familiar with the value of timber, and the plaintiff had absolute faith in him as her attorney at law and abvisor.
On August 12, 1943, at the request of the defendant, the plaintiff met him in Monticello, and the defendant then proceeded to look up certain records in the clerk's office at the court house concerning property belonging to Mrs. Bartlett. On the same date, the defendant and the plaintiff proceeded to the Lovin place in Morgan County where she explained to him difficulties that she had about renting the place or getting anything from the land, and her great love for it. During the time when the plaintiff and the defendant were on the said Lovin place, he left her and without her knowledge or consent made a thorough investigation of the timber on the place, and secretly obtained from her former tenant the names of three adjoining landowners.
The plaintiff had no intention of selling any of the timber on the Lovin place. She had told the defendant at the trial of the Kelly case that she only desired to secure enough money at that time, out of the Jasper County timber or from the verdict in the Kelly case, to pay the lawyers and taxes and possibly to pay $400 which she desired to pay, and did not want to sell the lands.
Prior to the time when the plaintiff went with the defendant to the Lovin place, he had prepared two timber contracts, each for $275, one for the Jasper County timber and the other for the Morgan County timber. On the return trip with the defendant from Morgan County, he mentioned the fact that she needed about $600, but that, figuring his fee into it, he could pay her only $550 for the timber in the two counties. The defendant's casual remark that he could give her only $550 was neither refused nor accepted by petitioner. They were riding in the defendant's truck.
Upon arriving back in Monticello late in the afternoon, the defendant took her to his office, where he exhibited to her the two timber contracts prepared by him. She had no idea of executing any contracts nor of making any agreement with the defendant at that time, since there was no emergency and she was not expecting to get any money at that time. She suggested that she would re-type the contracts and make a carbon copy. As the defendant stood over her and read from the copies he had already prepared, she undertook to incorporate the mutual agreements they might have into the contracts, and not make them unilateral, but the defendant over-rode every suggestion she made, and continued to hurry her about catching her bus home. After completing the typewritten sheets, she hastily turned over a sheet in the typewriter, and undertook to type some of the agreements and promises which the defendant as a lawyer had made to her. As a matter of fact, the matter of timber was confused with and almost lost sight of by the fact that the defendant was professing to represent her in the sale of her land in Jasper County to H. C. Tucker, and in preventing her from selling said lands to E. C. Kelly, a prospective purchaser. The agreement which she wrote out for the defendant to sign is in the following words:
'It is hereby agreed between Alene Bartlett Hardin, of Bibb County, Ga. and S. H. Baynes, of Jasper County, that in consideration of certain services that Mr. Baynes has already performed as a lawyer for Miss Hardin, and in consideration of his undertaking and agreeing to represent both Miss Hardin and Mrs. C. L. Bartlett in the matter of straightening out legal matters in Jasper County, that Miss Hardin agrees not to offer for sale either lands in Jasper County or Morgan County without first giving Mr. Baynes an opportunity to make an offer or to assist her in such negotiations.
Neither said timber contracts nor the agreement to be signed by the defendant were then signed by either the plaintiff or the defendant. If she had been asked to formally execute them at that time, she would not have done so. Said, contracts were not completed, and, as she understood, were merely to be held in abeyance during the time in which the defendant was to perform the duties he had agreed to perform as her lawyer, and also pending any sale that he might make of the Dickenson land in Jasper County, professing to be acting only as her lawyer and friend.
After the occurrences in the defendant's office, just stated, he pretended to go with the plaintiff to the ordinary's office only for the purpose of obtaining books left there by her in time to catch her bus home, which was nearly due. There the defendant produced from his pocket the alleged timber contracts which had been typed in his office, and asked a bystander to witness her signature to the same. Turning then to the ordinary, the defendant asked him to witness the papers, whereupon she protested that the papers were not to be officially executed, and were not for record. The defendant said to the ordinary: 'Oh, go on and sign, either way will do.' The plaintiff, still believing that the papers represented only an unfinished agreement between herself and her lawyer, and also a guarantee of the defendant's fee in the Kelly case, $25 of said fee being represented as cash in each agreement, weary and sick from the long day in the defendant's truck, and in fear of missing her bus, signed the said two papers. She received no money at that time. That night, defendant as she is informed and believes, sold and transferred to H. C. Tucker the Jasper County paper for $550. As she boarded her bus, the defendant handed her the agreement he was to make with her, unwitnessed, and signed by him in pencil.
On the night of August 13, 1943, the defendant in company with H. C Tucker came to her home and aroused her out of bed when she was ill, ostensibly to discuss with her the sale to Mr. Tucker of the Dickenson lands in Jasper County. At that time he offered her $550 for two said alleged timber contracts, which she refused. After prolonged discussion about the sale of the land to Mr. Tucker, and an agreement by her to a proposed option to Mr. Tucker, and her promise not to sell the land to E. C. Kelly, the defendant offered to pay her $600, and $50 was then added to the $550. The defendant had with him a receipt prepared on his letterhead for $550, which was changed to $600, and signed by her. The defendant agreed again and again that he would not record the timber contracts, and that the whole matter was to be held in abeyance pending the outcome of the option to Mr. Tucker to purchase the Dickenson place, in which the $600 would be adjusted and taken into consideration. The same night, the defendant professed to be interested only in helping her, and privately advised her as to what she could do about selling the Dickenson place to Mr. Tucker. The $50 added...
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