Logan v. Freerks
| Decision Date | 22 April 1905 |
| Citation | 103 N.W. 426,14 N.D. 127 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Clara Logan against George W. Freerks and others. Judgment for defendants and plaintiff appeals.
Reversed.
Judgment reversed, and a new trial ordered.
M. A Hildreth, for appellant.
The court erred in its charge, "the burden of proof in this case is upon the plaintiff to show by a fair preponderance of evidence the conversion claimed." The relation of attorney and client existed between plaintiff and the defendants. The burden was on defendants to show that they received the money in dispute in a lawful and legitimate manner and the burden to establish a perfect fairness and adequacy of the consideration and good faith of the transaction is upon the attorney. Klein v. Borchert, 95 N.W. 215; Whitehead v. Kennedy, 69 N.Y. 469; Robinson v. Hawes, 22 N.W. 222; Stanton v Clinton, Hart & Brewer, 2 N.W. 1027; Starr & Rice v Vandeheyn, 9 Johns. 253; Howe v. Ransom & Johnson, 11 Paige Ch. 538; Brock v. Barnes, 40 Barb. 529.
The proof showed that plaintiff was entitled to recover some amount as for money had and received. The instructions to the jury destroyed absolutely the right of the plaintiff to even recover the amount which the defendants conceded they owed the plaintiff. Reed v. Hayward, 82 App.Div. Rep. S.Ct. of N.Y. 417; Riegi v. Phelps, 4 N.D. 274, 60 N.W. 402.
The instruction of the court that the plaintiff should recover $ 1,500 in dispute, and interest thereon, or nothing, was erroneously prejudicial to the rights of the plaintiff. The defendants claimed a contract, either express or implied, by which the plaintiff agreed to pay them for defending Blanchard. Evidence was introduced under this theory of the defendants and the court instructed the jury in the following language: "In the first place I want to call your attention to the fact that you are not in this law suit trying the value of the services of Freerks, Bessie & Freerks rendered to Allen I. Blanchard." Under defendants' theory the court permitted them to show the character of their services for Blanchard, the amount of their disbursements for him and the value of such services, and the surrender of Blanchard for the purpose of procuring means to defend him. The plaintiff was entitled to have the action submitted upon the issues not only framed by herself but as tendered by the defendants. It is not the policy of the courts to make a multitude of suits, but to prevent litigation. Conaughty v. Nichols, 42 N.Y. 83, 76 N.Y. 211, 77 N.Y. 99.
The court erred in holding that the burden of proof was upon the plaintiff, and taking the question of the value of the services and their character from the jury. The burden of proof is on defendants to show that the plaintiff was not prejudiced by their conduct in reference to money for which suit was brought. Vanasse v. Reid, 111 Wis. 303, 87 N.W. 192; Burnham v. Hesselton, 9 L. R. A. 90; 1 Am. & Eng. Enc. Law, 958.
The rule is well settled on this question of the burden of proof. Elmore v. Johnson, 21 L. R. A. 366; Walling v. Eggers, 78 S.W. 428; Western Coal & Mining Co. v. Hollenbeck, 80 S.W. 145; Michels v. West, 109 Ill.App. 418; Moffatt v. Moffatt, 57 N.W. 954; Blunt v. Barrett, 124 N.Y. 117, 26 N.E. 318.
Defendants pleaded a confession and avoidance. The burden therefore was upon the defendants to make good the plea. Home Fire Ins. Co. v. Johansen, 80 N.W. 1047; Wheeler v. Lawson, 103 N.Y. 40, 8 N.E. 360; L. S. & M. S. Ry. Co. v. Felton, 103 F. 227, 43 C. C. A. 189; Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 11 S.Ct. 720; Selma R. & D. R. Co. v. U.S., 139 U.S. 560, 11 S.Ct. Rep 638; Board of Supervisors of Milwaukee Co. v. Pabst, 70 Wis. 352, 35 N.W. 337; Osgood v. Groseclose, 159 Ill. 511, 42 N.E. 885; Bollenbacher v. First Nat. Bank of Bloomington, 35 N.E. 403; Kuenster v. Woodhouse, 77 N.W. 165; Continental Bldg. & Loan Ass'n v. Aulger, 74 N.W. 405.
It was one of the issues in the case as to whether or not the defendants could turn over Allen I. Blanchard and secure possession of the money deposited for his appearance in the manner that they did. The court in its charge practically said to the jury that it was perfectly legitimate for the defendants to procure money in such manner, and that they should not draw any unfavorable inference from that fact. The instruction was not only misleading but put too narrow a construction upon the evidence in the case. Kvello v. Taylor, 5 N.D. 76, 63 N.W. 889; Grisell v. Bank of Woonsocket, 12 S.D. 93, 80 N.W. 161; Parliman v. Young, 2 Dak. 175, 4 N.W. 139; Young v. Harris, 4 Dak. 367, 32 N.W. 139; Lindblom v. Sonstelie, 10 N.D. 140, 86 N.W. 357; Welter v. Leistikow, 9 N.D. 283, 83 N.W. 9.
The defendant George W. Freerks was permitted to use his books of account and to testify therefrom; the court refused to permit the plaintiff to introduce such books of account in evidence. This was prejudicial error. Davy v. Jones, 68 Me. 398, 1 Greenleaf on Evidence, 526, 88 N.Y. 334; Whitmore v. Peck, 19 Albany Law Journal, 400; Adams v. Olin, 40 St. Rep. 551; Waldorn v. Evans, 46 N.W. 607.
Freerks & Freerks and A. J. Bessie, for respondents.
As a general rule the burden of proof rests upon the party who would be defeated if no evidence at all were offered. 11 Am. & Eng. Enc. Law (2d Ed.) 535.
The term "burden of proof" has two distinct meanings: First, to the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case; second, to the duty of procuring evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a prima facie case. 5 Am. & Eng. Enc. Law (2d Ed.) 21.
The trial court used the term in the former sense. In this sense of the term, the "burden of proof" never shifts, but the party who affirms has the burden of proof. Willett v. Rich, 56 Am. Rep. 684; Steph. Ev. 175; Chaflin v. Mayer, 75 N.Y. 260; Scott v. Wood, 22 P. 871.
Unnecessary allegation of matters of defense does not cast the burden of establishing them upon the defendant, where the plaintiff's claim is denied. 5 Am. & Eng. Enc. Law (2d Ed.) 32; Tarbox v. Steamboat Co., 50 Me. 345; Atkinson v. Goodrich Transp. Co., 31 N.W. 169; Lamb v. Camden & Amboy R. R. & T. Co., 46 N.Y. 271; Heinemann v. Heard, 62 N.Y. 448; Heilmann v. Lazarus, 90 N.Y. 672; Tourtelot v. Rosebrook, 11 Metc. 460; Delano v. Bartlett, 6 Cush. 364; Central Bridge Corporation v. Butler, 2 Gray, 130; Bacon v. Rogers, 8 Allen, 146; Robinson v. Railway Co., 7 Gray, 94; Nichols v. Munsel, 115 Mass. 567; Morrison v. Clarke, 7 Cush. 213; Brown v. King, 5 Metc. 173; Wood v. Chicago, M. & St. P. Ry. Co., 51 Wis. 201, 8 N.W. 214; Steffen v. Railway Co., 46 Wis. 262; Lockwood v. Chicago & N.W. Railway Co., 55 Wis. 63, 12 N.W. 401.
In dealing with his client, in his own interest, the attorney should show that the transaction is fair and honest; but the defendants have not the burden of showing the negative of the alleged conversion by a preponderance of the evidence.
The plaintiff gave the money in dispute to the defendants for the defense of Blanchard. With her knowledge and consent it was deposited with the First National Bank of Moorhead, Minnesota, as security to the officers signing the bail bond. The bond was released, and a like sum of money was paid to defendants by a Minneapolis draft and afterwards paid. At no time after its deposit did the defendants have either actual or constructive possession of the money alleged to have been converted. Best v. Muir, 8 N.D. 44, 77 N.W. 95; Plano Mfg. Co. v. Jones, 8 N.D. 315, 79 N.W. 338.
FISK, Special Judge. ENGERUD, J., took no part in the decision; Judge C. J. FISK, of the First Judicial District, sitting by request.
This action was brought in the district court of Cass county to recover the sum of $ 1,500 and interest, which sum plaintiff claims was intrusted to the defendants in December, 1901, for the purpose of securing bail for one Blanchard, who was at that time in the custody of the sheriff of Clay county Minnesota, charged with a public offense, and was to be returned to plaintiff when such bail was exonerated; that said money was so used by the defendants, but that subsequently defendants caused said Blanchard to be surrendered and the bail exonerated, and received said bail money, or its equivalent, back into their possession, and refused, upon demand, to pay the same to plaintiff, and appropriated the same to their own use. The defendants answered jointly, admitting the receipt of the $ 1,500, and alleging that they deposited the same in a bank in Moorhead to indemnify against liability certain persons who became sureties upon a bail bond given for the release of said Blanchard from custody; and they allege that thereafter, and on May 21, 1901, at plaintiff's request, they caused said Blanchard to be surrendered and the bail exonerated, whereupon the sum of $ 1,500, in the form of a bank draft, was paid to them, upon which they received said sum of money. They seek to justify their retention of all this money, with the exception of the sum of $ 107.75, which they concede is due plaintiff, by alleging that the plaintiff employed them as attorneys to defend the said Blanchard against the charge for which he was arrested; and in a very voluminous answer they set forth a great mass of evidentiary facts, stating in detail each item of services claimed to have been performed and expenses incurred, with their charge therefor, followed with an allegation of the reasonableness of such charge; and they conclude by alleging "that all the items of said account, correctly...
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