Weil v. Fineran

• Decision Date: 24 February 1906
• Citation: 93 S.W. 568,78 Ark. 87
• Parties: WEIL v. FINERAN
• Court: Arkansas Supreme Court

93 S.W. 568

78 Ark. 87

WEIL v. FINERAN

Supreme Court of Arkansas

February 24, 1906

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge reversed.

Weil an attorney, sued Mrs. Fineran, to recover for professional services rendered her. His complaint contains two counts substantially as follows:

"1. On or about May 1, 1898, defendant employed him to perform for her services in his individual and professional capacity whereby he would have earned, and she have become indebted to him in, the sum of $ 1,000; and thereafter defendant refused to permit him to perform his part of the said contract, and thereby he became damaged in the sum of $ 1,000.

"2. That defendant is justly indebted to him upon open account for services by him to her rendered and money for her use by him expended at her personal request of the reasonable value and agreed sum of $ 1,000."

Appellee denied all the material allegations.

Plaintiff an attorney at Chicago, Ill., testified that a woman called Madam Blanche Roland, whose real name was Margaret J Greenwood, died intestate in Pine Bluff, Ark., leaving a valuable estate; that he undertook, at the suggestion of one H. King White, of that city, to locate her heirs; that, after expending about $ 50 in the search, he located the defendant, who was one of the intestate's four children, and had an interview with her. The result of this interview was that on July 28, 1898, defendant agreed to pay plaintiff $ 100 and 20 per cent. of her interest in her mother's estate, and executed a written power of attorney, authorizing him to collect her share in her mother's estate. Subsequently plaintiff was notified that defendant had revoked the power of attorney which she had given him. Plaintiff estimated the property left by intestate to be worth $ 23,870.15.

The defendant testified that she had an interview with the plaintiff; that he told her that her mother had died in Little Rock, leaving an estate; that she asked him what her mother was doing in Little Rock, and he replied that she was running a boarding house; that plaintiff then told her that he had been put to so much trouble and expense that he thought she ought to employ him as her attorney; that she stated that she did not know him, and would prefer to go to her own attorney. He then told her that he had been acting at the instance of the attorney of her mother's estate, and that thereupon she said: "All right."

It seems to be conceded that intestate, at the time of her death at Pine Bluff, was conducting a house of ill-fame.

The court instructed the jury as follows:

"2. If you find from a preponderance of the evidence that defendant did enter into a contract with plaintiff to pay him the sums of money expended by him in finding her, and a $ 100 fee for his services in that connection, and the further sum of 20 per cent. of any share of her mother's estate which he might recover for her, and if you further find that said contract was made in good faith, and not procured by fraud, misrepresentation or concealment of material facts on the part of the plaintiff, and that afterwards the defendant revoked the power of attorney executed by her to plaintiff, then it is for you to say whether such revocation was intended by her and understood by him as dismissing him from the case, and denying him the right to proceed and carry out his part of the contract; if you should find that it was so intended and so understood by both parties, then you should find for plaintiff such sum in damages as you believe he is entitled to recover under the other instructions given herein.

"3. If you find that the agreement about which plaintiff testified was voluntarily entered into by the defendant, then the burden of showing that her consent to the same was procured by misrepresentation or concealment of material facts amounting to a fraud is upon the defendant.

"4. The burden is on the plaintiff to show by a preponderance of the evidence that the defendant entered into the contract with him on which this action is based and for the breach of which he asks for damages.

"5. Attorneys, in dealing with their clients, are required to exercise the highest order of good faith and to disclose to them all information in their possession as to the material facts of the case which would or might influence the client in entering into or refusing to execute the contract in the issue.

"6. The court instructs the jury, if they believe from the evidence that the plaintiff is entitled to recover, the measure of damages is the amount of money he would have received had he been allowed to complete the performance of his contract, less the value of such services as he would have been required to render, and also deducting any expense which he would have been compelled to incur in carrying out the contract on his part.

"7. If the jury find from the evidence that the defendant, Mrs. Fineran, was induced to enter into the contract of employment with the plaintiff, under statements made by the plaintiff at the time or immediately preceding the making of the same, in which he falsely magnified the amount of work, labor and expense necessary to accomplish the purposes, or by any other false representation about the place of the death of Margaret J. Greenwood, or that he falsely represented to her that it was the wish of the attorneys of her mother's estate that she should sign or enter into such contract, or that he falsely represented to her any other material fact or concealed from her any information of which he had knowledge which would have aided her in determining as to whether or not such a contract was just or equitable, then the defendant had the right, upon the discovery of such misrepresentations being false, or that important information about the estate had been concealed or was not disclosed, to repudiate the contract, and she is not liable under the same, and the jury will so find."

There was a verdict for defendant. Plaintiff filed a motion for new trial, assigning the following errors:

"1. Because the court erred in refusing to allow plaintiff's counsel to propound to him, while upon the stand, the following question, and him to answer the same:

"'I will ask you as an attorney, taking into consideration all that you have testified to as to the services you rendered and were performed by you, and considering the value of the estate, and what you did until the time she revoked the power of attorney--now tell the jury what your services were worth.'

"2. Because the court erred in refusing to allow plaintiff's counsel to propound to him, while upon the stand, the following question, and him to answer the same:

"'Now Mr. Weil, I will ask you the same question that I propounded to you, leaving out reference to the estate; now state to the jury what the value of your services were worth?'

"3. Because the court erred in refusing to allow plaintiff's counsel to propound to him, while upon the stand, the following question, and him to answer the same:

"Q. 'If that property is renting for $ 1,800, what would be its value, say, upon the idea that money is worth 10 per cent., or 8 per cent., what would it be paying?'

"4. Because the court erred in refusing to allow plaintiff's counsel to propound to him, while upon the stand, the following...