Larey v. Baker

• Decision Date: 28 December 1890
• Citation: 12 S.E. 684,86 Ga. 468
• Parties: Larey. v. Baker.
• Court: Georgia Supreme Court

12 S.E. 684

86 Ga. 468

Larey.

v.Baker.

Supreme Court of Georgia.

Dec. 28, 1890.

Attorney and Client—Purchase op Claims against Client—Trust.

1. Where a debtor, wishing to compromise her liabilities, has her husband, as her agent, consult an attorney with reference to getting control of the executions against her, and he unfolds to the attorney the entire scheme of compromise, the attorney cannot purchase the executions at a discount for his own benefit, but will be held a trustee of them for the debtor.

2. Where the attorney purchases such executions at a discount for his own benefit, and seeks to enforce them, he is only entitled to the amount paid for them, and to no compensation for his services.

Error from superior court, Bartow county; R. J. McCamy, Judge pro hac vice.

Akin & Harris and J. M. Neel, for plaintiff in error.

A. Baker and C. D. McCutchen. for defendant in error.

Simmons, J. Mrs. Larey, formerly Mrs. Deweese, filed her petition against Baker, making, in brief, the following allegations: On January 25, 1875, Waitzfelder & Co. obtained ft judgment against her. On January 12, 1876, Meador Bros, obtained a judgment against her. Afterwards she married Larey, and they determined to attempt to compromise all debts outstanding against her, and he opened negotiations with some of her creditors or their attorneys. The judgment of Waitzfelder & Co. was controlled by Murphey, as their attorney, and he claimed to have authority to compromise. Previous to November 1, 1887, the petitioner, through her husband, made an agreement with Murphey to compromise the Waitzfelder debt for $150. The 6. fa. of Meador Bros, had been transferred to Silva and Peacock for considerably less than its face value, and the petitioner had an understanding, through her husband, with Peacock to compromise his interest in the G. fa. at between $80 and $90. Silva was a stranger to Larey, and he did not know how to approach Silva for a compromise, but intended to open negotiations with him through some attorney or friend. Pending this state of negotiations, Larey was advised by W. C. Baker to call on hisbrother J. A. Baker, the defendant, for legal advice concerning the claims, the latter being a lawyer. Acting on this recommendation Larey did call upon the defendant for advice, and the defendant elicited from him all the facts, and what he had been trying to do, and the arrangements he had made with Murphey and Peacock. In the course of the confidential communication Larey had with the defendant, he told the defendant of the difficulty he was under in approaching Silva for a compromise; and the defendant said he knew Silva well, and could easily manage that for the petitioner, and Larey engaged his services to assist her in getting control of Silva's interest in the fi fa. at a discount, for her benefit, and in furtherance of her general purpose of compromising all of her outstanding debts. She expected to pay him a reasonable fee for his services, and relied upon him as her friend and attorney to assist her in the matter. Baker asked Larey to call again in a few days, by which time he would accomplish what he had engaged to do. Larey did call in a few days, and to his astonishment learned that, instead of doing what he had agreed to do, Baker had bought both of the fi fas. for his own benefit, —thatis, he had bought Silva's interest in the Mead or & Bros. fi. fa., and had bought the Waitzfelder & Co. fi. fa.; against which purchases Larey then and there protested. He bought from Murphey the fi. fa. of Waitzfelder & Co. for $150, and had it nominally transferred to Baker & Hall, and shortly afterwards took the transfer of the fi. fas. from Baker & Hall to himself. The petitioner offered to pay Baker what he had paid for the two fi. fas., with 8 per cent, interest, and a reasonable sum as compensation for his services in securing the fi. fas., though she believes he is entitled to no compensation; but Baker refused to accept the offer, and stated that he would accept nothing less than $450. She tenders him principal and interest of what he claims he paid, and $10 for his services. The petition then charges various attempts made by Baker to subject different portions of the petitioner's property, etc. It prays that the defendant be decreed to be the holder of the fi. fa. in trust for her; that he be compelled to accept the sum offered by her in satisfaction of the money expended by him for the fi. fas., with interest: and that he be restrained from pressing the fi. fas., and that they may be decreed canceled. Baker answered, in substance, that he knew nothing of any negotiations or understanding between the petitioner and Murphey, or between the petitioner and Peacock or Silva. He denied that Larey ever called on him for any advice or counsel in relation to the judgments in question, or the compromise, or that he elicited from Larey any facts about the petitioner's case, or what Larey had been trying to do, or the arrangements he had marie with Murphey or Peacock; or that Larey had employed him, or proposed to employ him, or asked of him any advice or opinion, either as a lawyer or otherwise, in relation to the fi. fas., or the compromise of them, in any way; or that he gave Larey any opinion as counsel, for he (defendant) was at that time the attorney of Silva. Nor did he undertake in any character to compromise for the plaintiff, or assist in any way to compromise the fi. fas., or any of them, or betray any confidence reposed in him by the plaintiff or her husband, or take advantage of any confidential communications. He bought Silva's interest, but in so doing he was not guilty of any breach of duty or good faith. Waitzfelder & Co.'s fi. fa. was really bought for Baker & Hall,...