Marshall v. Dossett

• Decision Date: 24 December 1892
• Citation: 20 S.W. 810,57 Ark. 93
• Parties: MARSHALL v. DOSSETT
• Court: Arkansas Supreme Court

20 S.W. 810

57 Ark. 93

MARSHALL v. DOSSETT

Supreme Court of Arkansas

December 24, 1892

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

STATEMENT BY THE COURT.

This is an action of replevin brought by the appellants, who are attorneys at law, for the possession of a mule which, it is claimed, the defendant had promised to deliver to them as a fee for professional services rendered at his instance. The case was tried on the following agreed statement of facts "J. M. Dossett, defendant herein, was confined in the Pulaski county jail on a charge of grand larceny, and, on November 14, 1889, asked Marshall & Coffman to defend him which they agreed to do, if he would pay a fee of $ 25. This he agreed to do, and, after they had agreed to defend him for $ 25, further agreed to give them his mule, in addition to $ 25, if they cleared him, which they agreed to, but would have defended him on the $ 25 fee without such agreement being made. He requested them to write to his wife to come and see him and them, which they did, November 16, 1889. His wife came to the city soon after, and called at their office, and they told her of said agreement, and that they would defend defendant for the $ 25, as agreed on with him, which she agreed to pay as soon as she could get their cotton picked out and sold. On December 10, 1889, she came in and paid the $ 25, and they gave her a receipt in full, which is attached hereto, that being all that was then due. Afterwards they told Dossett his wife had paid them the $ 25 agreed on, and he could consider them employed in the case. He again agreed to let them have his mule, in case they cleared him, in addition to the $ 25. On December 21, 1889, defendant had his trial, and while the jury were considering their verdict in his case, they (Coffman) called his attention to his contract to give them his mule in addition should be be acquitted, and he confirmed his former agreement to do so. After waiting some time for the jury to agree, they left the court room and soon after the jury returned a verdict of not guilty, and defendant was discharged. After his acquittal he left for his home without seeing them. When they heard of his acquittal they (Coffman) went out to find him, and while out met Dr. Driver, who lives near him, and sent word to him to come and see them about the fee. On January 3, 1890, they wrote defendant a letter and placed same in an envelope with their name and address on the outside, and addressed it plainly to him, at his post office at Doe Branch, Arkansas, asking him to come and see them and carry out his said agreement in regard to said mule. He failed to come and see them, or to reply to their said letter. They waited until he made his crop and replevied the mule in question, which was the only mule he had at that time, and at the time the fee was agreed on. The said mule is worth $ 30, and the damages for his detention amount to the sum of $ 5."

The court found for the defendant, declared that the agreement to deliver the mule was executory, and gave judgment accordingly. The plaintiff filed a motion for a new trial and appealed.

Judgment affirmed.

Marshall & Coffman pro se.

1. An executory parol contract may be rescinded, altered or discharged, before breach, by a subsequent unexecuted contract of the same nature. The same consideration is sufficient to support the new contract. 1 Smith, Lead. Cas part 1, p. 664; 58 Ala. 300; 66 id. 554; 12 Vt. 625; 5 Barn. & Ad. 58; 10 Ad. & El. 57; 52 Wis. 205; 54 id. 191; 128 Mass. 116; 116 id. 408; 95 Pa.St. 483; Bishop on Cont. 812-16; 3 A. & E. Enc. of Law. 889-91; 103 Ill. 105; 43 Vt. 581; 6 Exch. 839; 14 Johns. (N. Y.), 330; 9 Pick. 398.

2. This was a conditional sale. 48 Ark. 160; 2 id. 465; Tiedeman on Sales, sec. 212; Newmark on Sales, sec. 295; Bennett's Benjamin on Sales, pp. 555-6; 9 Ark. 85.

3. Appellee, for the first time, insists in this court that the contract was void on account of the relation of client and attorney. This claim was not made below, nor did the court pass upon or consider it. Counsel concede the utmost good faith on the part of the attorneys--which is all the law requires--but insist that defendant swindled himself by making such a contract. Here the mule contract was a part of the original treaty of employment of November 14. Moreover the employment did not take effect and the relation become established until December 10. Then defendant expressly ratified...