Henry v. Vance

• Decision Date: 29 May 1901
• Citation: 111 Ky. 72,63 S.W. 273
• Parties: HENRY v. VANCE et al. [1]
• Court: Kentucky Court of Appeals

63 S.W. 273

111 Ky. 72

HENRY v. VANCE et al. ^[1]

Court of Appeals of Kentucky.

May 29, 1901

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by S. B. & R. D. Vance against Mrs. Helen Henry to recover an attorney's fee. Judgment for plaintiffs, and defendant appeals. Reversed.

R. H Cunningham and W. P. McClain, for appellant.

Montgomery Merritt, Malcolm Yeaman, and Yeaman & Yeaman, for appellees.

O'REAR J.

Appellees are lawyers, practicing under the firm name stated, at Henderson, Ky. Appellant, Mrs. Helen Henry, and her sisters Elizabeth Spidel and Isabella Gayle, lived at Henderson, Ky and appear to have been people of quite moderate circumstances, and had always been so. Appellant was about 63 years old. A contract of employment, executed by appellant and her sisters retaining the legal services of appellee firm in the matter of recovering the interest of these women in an estate in Nova Scotia in which they were entitled to participate, was executed January 23, 1899, by which appellees were to receive a sum equal to 35 per cent. of the sum recovered. Shortly after the signing of the contract, appellant and her co-heirs, conceiving that they had been overreached in the matter by the attorney representing appellee firm, notified appellees that their services were no longer required, and they were dismissed from further attention to the matter of the estate. This letter of dismissal was as follows "Messrs. Vance & Vance--Gentlemen: That there may be no possible misunderstanding between us in the future in regard to your employment as our attorney as the heirs and distributees of the late Alexander Macfarlane, dec'd, of Wallace, Cumberland Co., Nova Scotia, and to make positive our intention in the matter herewith, and in emphasis of what we said to you on last Thursday, the 6th ultimo, withdraw all authority under the writing heretofore given you; believing that you took advantage of our ignorance of the facts, and obtained an unjust contract, which no court will uphold or sanction. We have advised the executors of our late uncle Alexander Macfarlane, dec'd, that any authority or attorneyship to you in that behalf has been wholly withdrawn, and that you have no authority to act for us. We feel, of course, that we should pay you a reasonable compensation for your services. Resp., Helen Henry. Elizabeth Spidel. Isabella Gayle." Appellees declined to consider themselves discharged, and wrote an offer to continue all needed service under the contract, which was rejected by appellant and her sisters, and the services of appellees were not accepted, nor, indeed, rendered in the matter. Appellant then went in person to Nova Scotia, taking a family Bible and some old letters, and with these convinced those there interested of her relationship; and, upon a distribution of the estate, appellant and her sisters received from the estate mentioned about $19,000, or $4,750 each. Appellees sued appellant to recover 35 per cent. of her part, or $1,662.50. The answer pleaded that the contract was procured by the fraud and deceit of appellee R. D. Vance, in that he took advantage of a communication meant for her, and concealed from her and her sisters the source of his information as to said estate, the name of the party who proposed to give all particulars upon inquiry, and the fact that such particulars could so be had, and overreached the women in the matter of the contract; that it was unconscionable and inequitable; that appellee magnified the dangers, expense, and uncertainty of appellant's realizing anything from the estate, as well as arousing her fears that independent inquiry by her, or others than a lawyer, would probably embarrass the situation. The answer further pleaded that, directly upon learning of the advantage taken of her in the matter, she and the other contracting heirs had repudiated the agreement, and so notified appellee, and that they declined to avail themselves to any extent of appellees' services, and in fact they rendered none. An issue was joined upon these allegations, and the case went to trial before a jury. Appellant having the burden, introduced herself, Mrs. Spidel, and Mrs. Gayle, and Robert Henry and John Spidel, as witnesses, all of whom were present when the contract sued on was signed. The substance of their testimony is that about January 23, 1899, appellee R. D. Vance, one of the members of appellee firm, was handed a letter by J. Henry Lyne, received by him from one J. W. Macfarlane, of San Francisco, Cal., asking for information concerning the names and addresses of the children or heirs of one Jacob Ackerly, who had married Mary Macfarlane, and moved from Nova Scotia to Henderson, Ky. and engaged in the tobacco business, before the war. The letter contained the further statement that one son of Ackerly had entered the Confederate army, and was killed at the battle of Shiloh, and that the oldest daughter of Ackerly had married a lawyer named Spidel. It further stated that these persons were heirs to a large fortune by reason of the death of the Hon. Alexander Macfarlane, the uncle of the people inquired about, and that he had died at his home, Wallace, Nova Scotia, December 14, 1898. The letter concluded: "For particulars, write to T. W. Macfarlane, 324 Montgomery Street, San Francisco." Lyne remarked to Vance when he handed him this letter: "Here is something, Allen [meaning the spokesman's San Francisco correspondent] has sent here. I have no time to fool with it. If you can find these people, they will need a lawyer, and there may be something in it for you." Thereupon Vance telephoned to sons of Mrs. Henry and her sister Mrs. Spidel, asking how they would like to hear that they or their mothers had inherited a fortune, and, with only that much of information to the young men, then made an engagement for a conference with the parties that evening at appellees' office at 7:30 o'clock. At this meeting appellee R. D. Vance (S. B. Vance was not present, as it appears) made the inquiry of the women touching their relationship to the decedent, which was satisfactorily stated. He read from the letter received by Lyne from T. W. Macfarlane, and the facts stated in the letter, concerning the family sought for, these women confirmed, as identifying them as the heirs in question. Appellee did not disclose from whom he had received the letter, or the fact that "full particulars" could be had by merely inquiring of the Macfarlane, the writer of the letter, whose name and address were carefully given in it. On the contrary, when asked how he learned the facts stated in the paper from which he was reading, appellee avowed that he had learned it by accident. One of the sisters suggested to appellant that she write to some of her relations in Nova Scotia, with whom she had some personal acquaintance, and formerly some correspondence. To this suggestion appellee interposed the objection that that would never do, and that it would be better for a lawyer to write. He further urged upon the women the dangers of delay, suggesting that the estate was liable to be distributed at any time, and that the matter had already been considerably delayed; that the estate was liable to distribution, perhaps, within 60 days, which was then apparently within 2 weeks of having transpired; and that prompt, careful, and vigorous action was required. Furthermore, they were told by appellee that it was very doubtful whether there was anything in it,--those matters generally turned out so,--and he advised them not to put any money or expenses into it;...