Jordan v. Westerman

• Decision Date: 01 July 1886
• Citation: 62 Mich. 170,28 N.W. 826
• Court: Michigan Supreme Court
• Parties: JORDAN v. WESTERMAN.

28 N.W. 826

62 Mich. 170

JORDAN v. WESTERMAN.

Supreme Court of Michigan

July 1, 1886

Error to Lenawee.

Richard A. Watts, for plaintiff.

Millard & Weaver, for defendants and appellants.

CHAMPLIN, J.

Defendants are attorneys at law and solicitors in chancery, practicing in the city of Adrian. In November, 1882, the plaintiff in this suit employed them to prosecute a suit for divorce in the Lenawee circuit court. They drafted and filed the bill on November 3, 1882, and obtained a decree for divorce on December 1, 1882. There was no provision in the decree relative to alimony. Previous to the decree the defendant in the divorce suit paid to the defendants above named $4,500 in full for alimony, costs, and expenses. It is to recover this money that this suit is brought, The defendants claim to withhold one-half of the above amount, or $2,250, under an agreement which they claim to have made with defendant, and which she denies was made. At the time the suit was instituted plaintiff lived with her husband upon a farm in the vicinity of Adrian. He had become an habitual drunkard and, as it was alleged in the bill, he had frequently been guilty of cruel and inhuman treatment towards her. They had two sons. The eldest, whose name is Martin, was then 17; the other, Eddie Jordan, was then 11 years of age. She sent by Martin, requesting defendants to come to the farm, so she could engage them to bring the suit for divorce. Accordingly taking advantage of Mr. Jordan's presence in the city one of the defendants went to the farm, and there saw Mrs Jordan. She stated her case to him, and seemed greatly agitated lest her husband should return and find the defendant there, and appears to have been in great fear of bodily injury from her husband. It was arranged that defendants should prepare a bill of complaint, and have it in readiness, and the first opportunity she found she would go to Adrian, and sign and verify it. The parties differ in their narration of what occurred at this interview. The defendant says he asked her about pay, and she said she had nothing, and he told her that he sometimes took such suits upon shares, and she said that would be satisfactory to her. She says that she asked him about pay, and he replied that he would get his pay out of Jordan; that he would have to pay everything; and asked how much he was worth, and she told him that he was estimated to be worth $40,000. On the evening of November 3, 1882, Mrs. Jordan, with her two children, went to defendant's office, and there signed the bill which had been prepared, and she verified it before an officer. She says that she intended to go and remain among friends in or near Grand Rapids and Manistee, and stay until the decree was obtained; and defendants say that she desired them to take the whole charge and management of her case, including alimony; and to enable them to do so, and to secure their pay, they drew up, and she executed, the paper writing of which the following is a copy, viz.:

"Know all men by these presents, that Sarah M. Jordan, of the county of Lenawee and state of Michigan, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Walter S. Westerman and Wallace Westerman my true and lawful attorneys for me, and in my name, place, and stead, to prosecute to completion certain divorce proceedings this day commenced by me against my husband, George W. Jordan. Said Westerman & Westerman are to pay all costs incident to the prosecution of said proceedings until they are terminated; said costs including the officers' fees for serving subpoena in commencing said divorce proceedings; also clerk's fees; commissioners' fees for taking complainant's proofs, and reporting the same to circuit court; also witness fees; and all other costs or charges proper to be paid in conducting said divorce proceedings to completion. Said Westerman & Westerman are to have, as a reasonable compensation for their services and costs aforesaid, whatever sum the said George W. Jordan can be compelled to pay by the court, or otherwise, for alimony, either temporary or permanent, as well as whatever may be allowed by the court for costs and expenses, should there be anything allowed for such purpose, unless said sums exceed three hundred dollars. In that case the said Westerman & Westerman are to have one-half of the remainder or additional sum. Giving and granting unto the said Westerman & Westerman, said attorneys, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as I, Sarah M. Jordan, might or could do if personally present, with full power to substitution and revocation; hereby ratifying and confirming all that my said attorney or their substitute shall lawfully do, or cause to be done, by virtue hereof.

"In witness whereof, I have hereunto set my hand and seal the third day of November, 1882. SARAH M. JORDAN."

This paper defendants testify was partly drawn before she came, but the portion in reference to their compensation was written in after she had signed and verified the bill. The power of attorney was acknowledged before a notary public. Wallace Westerman testifies that he read it all over to her carefully before she signed it, and she said it was satisfactory to her if it was to him. She denies explicitly that she ever made such an agreement respecting the pay for their services, and testifies that the part of the paper relating thereto bearing her signature was not read to her by the defendants. After the suit was commenced Mr. Jordan saw the defendants with a view of effecting a settlement and reconciliation, and desired to know where Mrs. Jordan was, but they refused, in accordance with a request made by her, to disclose her whereabouts. Jordan offered them $3,000 as alimony for Mrs. Jordan, which they refused. He then offered to convey to her by deed the best 80 acres of land he had, subject to a life-interest to him, and to treat her well if she would return to her home. He employed one of the defendants to carry this proposition to Mrs. Jordan. She refused, and then he retained counsel to defend the suit. His counsel endeavored to effect a settlement, and desired and requested defendants to tell them where Mrs. Jordan was, so they could communicate with her with a view to a reconciliation and renewal of the family relations, and made an offer of conveyance of land to her worth about $8,000 under certain conditions. Defendants refused to tell where she was, or to accept the offer; asking how they could be compensated in case of such settlement. Defendant's (Jordan's) counsel said they should have a reasonable compensation for their service, and that defendant, Jordan, should pay it. They inquired what counsel regarded a reasonable compensation, and where told $500. Jordan's counsel then offered to pay to defendants for Mrs. Jordan, for alimony, $3,000, and $500 for their services; which offer they raised later to $3,500, and $500 for defendants' services,--all of which were declined. They disclosed to counsel for Jordan the fact that they held an agreement by which they were to receive one-half of all money received as compensation, and they admitted it would be against their interest to have the parties settle and live together again; and that they should not make any effort to have the parties do so; and also that they were looking out for their own interests in getting as large a sum as possible. Finally Jordan, by his counsel, offered $4,500, and this sum they accepted, and the following agreement was entered into:

"It is hereby agreed by and between the parties hereto as follows: Said defendant is to pay the complainant the sum of four thousand five hundred dollars, the same being in full for costs, alimony, and expenses in the above-entitled cause; two hundred and fifty dollars to be paid down on the execution of this instrument, and the balance (forty-two hundred and fifty dollars) on the presentation of a certified copy of a decree in the above-entitled cause to the attorneys for the defendant.

"November 20, 1882."

This was signed by the attorneys, and also a receipt for the $250 was signed by defendants. On the twenty-seventh of November a stipulation to take proofs and waiving notice was signed by the solicitors for the respective parties. The proof was taken on the 28th and 29th, and was reported to the court December 1st, and a decree...