McKnight v. Gizze

• Decision Date: 04 December 1934
• Citation: 175 A. 676,119 Conn. 251
• Court: Connecticut Supreme Court
• Parties: McKNIGHT et al. v. GIZZE.

175 A. 676

119 Conn. 251

McKNIGHT et al. v. GIZZE.

Supreme Court of Errors of Connecticut.

December 4, 1934

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Action of quantum meruit by James E. McKnight and others against James Gizze to recover for legal services. Upon the death of the defendant, his executrix was made a party defendant. Judgment for plaintiff's on trial to the court, and defendant appeals.

No error.

John J. Sullivan, of New Haven, for appellant.

John H. Cassidy and Frederic W. Dauch, both of Waterbury, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, Judge.

The defendant Gizze was tried for murder in the first degree, and was also made defendant in two civil actions claiming damages in the aggregate of $50,000. The plaintiffs acted as sole counsel for the defendant in all the cases. The defendant was acquitted in the murder case; one of the civil actions was disposed of in his favor upon the pleadings, and the claim for damages in the other was reduced from $25,000 to $10,000. There was no agreement made between the parties at the time the plaintiffs were retained by the defendant, or thereafter, as to the amount which the plaintiff's would charge for their services, save that the fees would be reasonable; but the defendant delivered to them a bank book showing a deposit of $600, and assigned them a mortgage which he held for $1,400, and gave them a mortgage for $10,000 on his own real estate which was then worth $20,000.

The trial court has found that the plaintiffs spent about one-fourth of their time from June 10, 1925, to September 9 1925, preparing for the murder trial, and from September 9th to November 3d, both devoted all their time, including Sundays and a good part of their nights, to the same purpose. The circumstances were such that the defendant was in imminent danger of conviction for first-degree murder, but he was acquitted after a trial lasting from September 24, 1925 to November 3, 1925, and the plaintiff's then spent ten days over a period of several months in defending the two civil actions. Thereafter the plaintiffs, in conferences extending over many weeks and into the spring of 1926, obtained an agreement between the parties for the settlement of the case. The court has found that the expenditures proved by the plaintiff's amounted to $927, and that the value of the plaintiffs' services was $10,000, making $10,927, from which was deducted the $2,000 first turned over to them, and rendered judgment in their favor for $8,927, and costs.

The appellant-defendant attacks seventeen of the thirty-seven paragraphs of the finding and seeks the addition of seven paragraphs of the draft finding. Of the latter, some are wholly immaterial to the issues before us and the remainder are based upon conflicting testimony, and we cannot therefore accept them. We do not discover any finding which is not distinctly supported by the evidence save, perhaps, that which says that there was no actual fraud or intent to defraud in procuring the mortgage, and that any duress or coercion was constructive only. The details of that transaction were referred to only incidentally in the testimony given in the present case. It is true that the file and judgment in a former case brought to foreclose the mortgage, in which judgment was rendered for the defendant, were introduced as an exhibit in this case, entitling the court to examine the entire record in the files of that court to determine the scope of the judgment.

The proper procedure for the defense was to plead that judgment by way of estoppel, but it was not done. Practice Book, § 104. However, no objection was made to its admission, and since the finding must stand if at all upon the record of the former case, we have examined it. It shows that at the time the mortgage was given, the defendant, an elderly foreigner, ignorant and uneducated, under arrest charged with first-degree murder, with little if any opportunity to communicate with his family or friends, was in a nervous condition of terror and apprehension, and under these circumstances gave the mortgage at the solicitation of his attorneys. An appeal from the judgment was taken to this court and, in addition to sustaining it, we pointed out that a court of equity would scrutinize such a transaction between a client and his attorney with great care and that if it was doubtful whether the almost good faith and mutual understanding had been shown, such doubt would be resolved in favor of the client; we held that under the circumstances disclosed by that case, the plaintiffs were not entitled to fore-close the mortgage. McKnight v. Gizze, 107 Conn. 229, 140 A. 116. While we sustained the finding of the court that the transaction was tainted with coercion and fraud, these words were not used in the sense of actual fraud practiced or duress exerted upon the defendant, neither of which were found by the trial court to have existed, but in the sense that, under the circumstances, the plaintiff had taken an unfair and inequitable advantage of the defendant, such as the law would not sanction. On the basis of that decision, the trial court in this case has found that " there was no actual fraud or bad faith or intent to defraud on the part of the plaintiffs, *** and any duress or coercion involved in the transaction was constructive in character, resulting from the respective situations of the parties." This interpretation of the decision in that case was substantially correct.

It appears from the foregoing recital of the facts that there was no argument made as to the amount of compensation the plaintiffs were to receive, and the contention of the defendant on this appeal that the result of the foreclosure action was a " denial of...