Hickman v. McDonald

Evans, J. The facts in this case are not materially in dispute. The plaintiffs are attorneys. In August, 1911, they were employed by the defendant Anna McDonald and-by her father in her behalf to prosecute an action for seduction against the defendant Bradford. An agreement was entered into whereby they were to take a contingent fee and were to receive “one-half of whatever they may collect by suit or otherwise as they deem best. If they collect nothing, they — 52 — are to get nothing.” At that time the defendant was confined to her bed in confinement and was a minor, and did not attain her majority until October following. A suit was begun in her behalf by her father as her next friend and by the plaintiffs as her attorneys. Defendant Bradford was supposed to be about to depart from the county. His only property consisted of one-sixth interest in eighty acres of land, worth about $700. Having placed an original notice in the hands of the sheriff for service, one member of the firm went with the sheriff for the service thereof. He entered into a settlement with Bradford on behalf of his client for $600 and took his note therefor payable to his client and secured by a mortgage on all of Bradford’s property. The settlement thus obtained was immediately reported to the client and to her father. The defendant McDonald at this point denies that she approved the settlement. We are satisfied, however, from the evidence beyond a reasonable doubt that both she and her father did approve it heartily. On October 7th following, being the day upon which the defendant McDonald attained her majority, she served upon the plaintiffs a written notice of disaffirmance of her contract on the ground of her minority. By the same notice she repudiated also the contract of settlement entered into with Bradford on the ground that it was unauthorized. The note and mortgage being at all times in the possession of the plaintiffs, they brought this action to establish and enforce their lien thereon. Both defendants appeared thereto by the same attorney. They filed separate answers. The answer of the defendant McDonald pleaded her minority and her disaffirmance and her repudiation of the settlement as unauthorized. The answer of the defendant Bradford adopted that of his codefendant, and further pleaded that the settlement was obtained by false and fraudulent statements, and that he had since fully settled and compromised the claim with his co-defendant. It appears in the evidence that the defendant Anna McDonald had received from Bradford the sum of $105 and — 53 — that she wanted no more. The defense of both defendants appears to have been made in the interest of Bradford alone. 1. contracts of infants : necessities: attorney's services: settlement of suit. I. Section 3189 of the Code provides: “A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to tlle ottier Party a11 money or property received by him by virtue .of the contract, an(j remaining within his control at any time after his attaining his majority, except as otherwise provided.” The first question that naturally arises is whether legal service in such a ease as here presented is a necessity within the meaning of the statute. The question is one which we have never passed upon in this state. For the purpose of this case the defendants’ counsel concedes the legal proposition and concedes that legal service and advice in a seduction case is a necessity within the meaning of the statute. Accepting this concession as sufficient for our present purposes, we need not pass upon the question further than to note that the concession made is in accord with the holding in many other jurisdictions. Munson v. Washband, 31 Conn. 303 (83 Am. Dec. 151); Epperson v. Nugent, 57 Miss. 45 (34 Am. Rep. 434); Anding v. Levy, 57 Miss. 55 (34 Am. Rep. 435); Barker v. Hibbard, 54 N. H. 539 (20 Am. Rep. 160); Crafts v. Carr, 24 R. I. 397 (53 Atl. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721). It is the contention of appellant, however, that this attribute of necessity cannot apply to a mere contract of agency, and that the plaintiffs acted as agents only, and not as attorneys, in making the settlement with Bradford. That the plaintiffs acted as agents is doubtless true, but they were agents in the sense that all attorneys are agents for their clients within the scope of their authority. An attorney is necessarily an agent. Agency inheres in his relation to his client. The plaintiffs were not divested of their character as attorneys, nor did they terminate their relationship as such, by — 54 — reason of their attempt to accomplish a settlement. Granted that they could not-compromise their client’s claim without express authority, they were bound nevertheless to serve the interest of their client to the best of their ability, even to recommending a settlement, whether authorized to make it or not. If they made a settlement in excess of their authority, the election rested with the client whether to repudiate or to ratify. As already indicated, the settlement in this, case was ratified both by the minor and by her father as next friend, and this disposes of the claim made in appellants’ argument that the contract of settlement was repudiated as being unauthorized. 2. same: attor?easonaMelces: value' II. It is urged that, even though the minor was bound. for the services of her attorneys as for necessities, she was bound only for the reasonable value of such services, regardless any contract for a larger amount. As an abstract proposition, there is much to be said in support of this contention. In this ease, however, the undisputed evidence shows the reasonable value of the services to be the same amount as that determined by the contract. This state of the record, being conceded by appellants, leaves nothing to argue on the abstract proposition. 3. same: attorney’s lien: recovery. III. It is urged on behalf of appellant Bradford that the agreement between the plaintiffs and their client could not be binding upon him and that he could not thereby be precluded from maintaining his defenses to the notes and mortgage. This contention may also be conceded, but it avails little to such appellant. No evidence was offered in support of the defense of fraud. The notes and mortgage were therefore valid as against him. The defense of payment is proved to the ex-' tent of $105. Whether such payment could be deemed a compromise in a legal sense is a different question. It does not appear from the evidence that there was any infirmity in the paper or that there was any dispute concerning the same — 55 — between the two defendants, All that appears is that she voluntarily relinquished her rights against him because of her affection for him. Having reached her majority, it was doubtless competent for her to waive her rights and to accept less than her due. But the plaintiffs had a'lien upon the paper in their possession and this could not be defeated through any mere surrender by the client. So far therefore as it was in the power of Anna McDonald to surrender the notes and mortgage to the defendant Bradford, he has obtained the benefit of such surrender. The trial court awarded a decree against him, only for the amount due the plaintiffs, and not for the amount which would otherwise be due to Anna McDonald. 4 same : attorreprSntation: adverse^iutei11 IV. The position of Anna McDonald in this case is unique and unusual and ought not to pass unobserved by us. An answer was filed in her behalf which serves no function beneficial to her. Such answer serves no interest except that of Bradford. She testified to her affection for him and that she expected to marry him. This was the reason for her surrender of her rights and it was not discreditable to her. The trial herein was had more than one year after she had attained her majority. The plans for the marriage were still open and without date. The stipulation of settlement between her and Bradford is in the record before us. Its terms afford no protection to her. They were drawn in the interest of Bradford alone. Perhaps this statement is too sweeping. Bradford does agree therein to pay her doctor’s bill and nurse hire and to pay her for three months’ loss of time at $3 per week and an estimated doctor’s bill for future attendance in the sum of $35. This was entered into on the day the young mother attained her majority. The expected marriage, the manifestly controlling consideration for her surrender of her rights under the mortgage, is not mentioned therein. Older heads than hers will shake with suspicion that she has been — 56 — twice deceived and that her codefendant- has used her affection for his own protection alone. ■ Under the circumstances shown, we think that the same attorney ought not to have represented both of these parties in this litigation either in the lower court or here. Under the issues as made, the allegations of the answer of the defendant McDonald were more hostile to her interest than were the allegations of the petition. The court therefore has had no opportunity to protect her rights. The costs of this case will be taxed to the defendant Bradford, alone.— Affirmed. Ladd, C. J., and Weaver and Preston, JJ., concur.