White v. Whaley

By the court, Johnson, J. By the very terms of the contract which this action is brought to enforce, the plaintiff became the attorney of the defendant for the collection of the judgment. The relation of trust and confidence as to that judgment was then created. It is clear from all the evidence that the plaintiff was at that time in the possession of information on the subject of the value and collectability of that judgment which he did not disclose to the defendant, but concealed from hito for the purpose of obtaining a more favorable bargain to himself, and obtaining a larger share of the debt for his trouble of collecting than he would be able to get otherwise. This he does not deny in his test! [364] mony„ If he denies it at all, it is only by a peradventure and guess. On the other side, the evidence is full and positive, not only as to the plaintiff’s knowledge, but to his silence and misleading pretences. It was, therefore, a mere question of law, whether the plaintiff could enforce a contract of that kind, made under such circumstances. In order to entitle the plaintiff to recover on such" a contract, the onus lay upon him of proving that he took" no advantage, but gave to his client, all the information he possessed or could obtain on the subject, and advised him as he would have done in relation to a third person, offering to become a purchaser. This general rule applies alike to trustees, agents, attorneys, solicitors, and guardians. In short, it applies to all persons who undertake to act for others in a fiduciary capacity. See White and Tudor, (Lead. Eq. Cas., 126 to 146), where most of the cases on the subject are collected The plaintiff insists that the case does not fall within this rule, inasmuch as he was not the attorney of the defendant in the action in which the judgment was obtained, and only became such when the contract was executed and delivered; and that in the negotiations before that, they were dealing at arms length the same as any other parties. But this distinction is quite too fine to affect the application o£ the rule. The plaintiff was an attorney and the very object of the negotiation was to bring about and create the confidential relation of attorney and client, and fix the measure of the compensation of the attorney. The relation and the contract came into existence at the same instant. The duty and the obligation were simultaneous and the latter is affected by the omission of the former. The reason of the rule applies as well to such a case as to one where the relation precedes the contract. [365] The defendant was at liberty to abandon the contract and refuse to be bound by it, whenever he discovered the suppression, of which his attorney had been guilty. A new trial must, therefore, be denied, and judgment ordered for defendant on the verdict.