Whipple v. Barton

• Decision Date: 12 March 1886
• Parties: WHIPPLE v. BARTON.
• Court: New Hampshire Supreme Court

3 A. 922

63 N.H. 613

WHIPPLE

v. BARTON.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 12, 1886.

Assumpsit to recover the excess over $10 paid by the plaintiff out of his pension money to the defendant for his services as an attorney in prosecuting a pension. Facts found by the court. Upon the question whether the payment was exacted by the defendant, or was a voluntary gift, there was no preponderance of evidence in favor of the defendant.

Mr. Brown, for plaintiff.

Mr. Barton, for defendant.

CARPENTER, J. It is unnecessary to consider the effect of Rev. St. U. S. § 5485. To establish a gift from a client to his attorney, in whatever form the question may arise, it is incumbent upon the latter to show affirmatively, not only that it is voluntary, but also that it is made with full knowledge on the part of the client of all material facts known to the attorney, and that it is not brought about by any undue influence, either actively exerted, or arising from the relation between them. The presumption is against its validity. Nesbit v. Lockman, 34 N. Y. 167; Whitehead v. Kennedy, 69 N. Y. 462; Cowee v. Cornell, 75 N. Y. 99; St. Leger's Appeal, 34 Conn. 435; Newman v. Payne, 2 Ves. 200; Gibson v. Jeyes, 6 Ves. 278; Wood v. Downes, 18 Ves. 120; Savery v. King, 5 H. L. Cas. 627; Story, Eq. Jur. §§ 310-312. No preponderance of evidence being found in favor of the defendant, the plaintiff prevails.

Judgment for the plaintiff.

BLODGETT, J., did not sit. The others concurred.

NOTE.

For a full discussion of the question of undue influence in case of gifts between persons occupying confidential relations, see Worrall's Appeal, (Pa.) 1 Atl. Rep. 380, and note, 386-389.

Respecting gift from client to attorney, see paragraph 2 in note to Worrell's Appeal, 1 Atl. Rep. 386.

1 Reported by R. E. Walker, Esq., of the Concord bar.