Armstrong v. Morrow

Xeewin, J. Many of the facts in the case are undisputed and others well established by the evidence. We have set out the findings of fact in the statement of the case and shall refer to them in the opinion only in so far as may be thought necessary in discussing the material questions involved. The defendant and deceased, Mr. Phillips, for many years before the assignment in qiiestion were close intimate friends, and the defendant was not only the attorney of Mr. Phillips, doing most of his legal business, but also his companion. The friendship was mutual, and each had confidence in the other. Defendant’s professional relations with Mr. Phillips commenced in 1895 and continued down to the time of Phillips’s death. Phillips died at Oconto May 29, 1915, possessed of quite a large estate. He had been a widower for many years. Up to 1897 defendant seems to have made book charges against Phillips quite regularly, but ceased doing so thereafter. Canceled checks produced on the trial showed that defendant had paid Phillips a large amount of money, but there was nothing to show what was paid defendant for his services. In fact the transactions between defendant and Phillips relating to services performed and amount paid were left by the proof uncertain. The uncertainty in proof was due largely to the fact that defendant was not permitted to testify to transactions with the deceased, and to his failure to produce other competent evidence. It is to be regretted that more definite and complete proof was not or could not have been made of the business relations be [6] tween defendant and bis client, Mr. Phillips, in view of the legal status existing between attorney and client. In view of the confidential as well as professional relations existing between defendant and Phillips, it was incumbent upon defendant to show that in all fiduciary dealings with Phillips he acted in good faith and without disadvantage to his client. In Young v. Murphy, 120 Wis. 49 (97 N. W. 496), it is said at page 51: “If an attorney purchase his client’s property, concerning which his advice is sought, the transaction is always viewed with suspicion, and the attorney assumes the heavy burden of proving not only that there was no overreaching of the client, but that the client acted upon the fullest information and advice as to his rights. In other words, the attorney must prove uberrima fides, or the transaction will be set aside by a court of equity. These principles are so well established as to need no citation of authorities, and to the credit of the profession, be it said, it is rarely necessary to invoke them.” The law on the subject is well settled in England and America. In Gibson v. Jeyes, 6 Ves. 276, Lord EldoN said: “It has been truly said, an attorney is not incapable of contracting with his clients. He may deal for a horse, an estate, etc. A trustee also may deal with his cesiui que trust; but the relation must be in some way dissolved; or, if not, the parties must be put so much at arm’s length that they agree to take the characters of purchaser and vendor, and you must examine whether all the duties of those characters have been performed.” An attorney is an officer of the court whose duties are to aid in the administration of justice, and is held to a strict accountability in all his professional relations with his clients. Any undue advantage gained by the attorney over his client by deception or undue influence while the relation exists will not be upheld by the courts. Young v. Murphy, 120 Wis. 49, 97 N. W. 496; Dockery v. McLellan, 93 Wis. 381, 67 N. W. 733; Vanasse v. Reid, 111 Wis. 303, 87 N. W. [7] 192. Tbe cases between trustee and cestui cpae trust where a confidential relation exists are somewhat aldn to the cases of attorney and client and so recognized by the authorities. Puzey v. Senier, 9 Wis. 370; Disch v. Timm, 101 Wis. 179, 77 N. W. 196; Ludington v. Patten, 111 Wis. 208, 86 N. W. 571. The authorities generally, both English and American, hold that where the relation of attorney and client exists and property is transferred to the attorney by the client while such relation exists, and the transfer is claimed to be a gift, the burden of satisfying the court that the gift was uninfluenced by the attorney in his relations with his client is upon the attorney. Young v. Murphy, supra; Wright v. Carter, [1903] 1 Ch. 27. In Vance v. Davis, 118 Wis. 548, 551, 95 N. W. 939, this court, in speaking of the proof necessary in fraud cases, said: “Absence of such direct proof is, however, not final, for, in apparent contradiction of the ordinary rule requiring clear and direct proof of fraud, this and other courts have recognized the necessity of casting the burden of negative proof upon one who profits from a position of confidence and control by a conveyance of such character and made under such circumstances as to suggest improbability that it is the free act of the grantor, and probability that it is due to influence of the beneficiary, which his confidential relation malíes easy, but renders difficult or impossible of direct proof.” It is incumbent upon the attorney in a case like the one at bar to show affirmatively either that he paid an adequate consideration for the property, or that a gratuity was intended and that no advantage was taken of the confidential relations existing between the attorney and his client to obtain it. Dockery v. McLellan, 93 Wis. 381, 67 N. W. 733; Vance v. Davis, 118 Wis. 548, 95 N. W. 939; 6 Corp. Jur. 691; 2 Pomeroy, Eq. Jur. (3d ed.) § 957, p. 1751; Id. § 958, p. 1757; Bigelow, Fraud, 265; Nesbit v. Lockman, 34 N. Y. 167; Whipple v. Barton, 63 N. H. 613; Thomas [8] v. Turner’s Adm’r, 87 Va. 1, 12 S. E. 149. Many other cases, both English and American, holding substantially the same strict rule laid down in the authorities heretofore referred to might be cited. The authorities cited in this opinion and many others referred to in the able brief of counsel for respondent lay down general rules. Each case, of course, must depend upon its particular facts. What might be sufficient evidence to turn the scale in one case might not be in another. The dominating influence of the attorney and the weak, confiding, and submissive character of the client in one case might require far less proof than in another case where the client was of a strong and aggressive personality and not easily influenced by his attorney. The court below found that there was no valid consideration for the assignment; that the assignment was procured by improper and undue influence and void; that Morrow had deeply ingratiated himself into Phillips’s confidence. These findings are supported by the evidence and warrant the judgment entered. The established facts bring the case clearly within the doctrine repeatedly laid down by the courts. ' The assignment, therefore, in connection with the facts and circumstances shown by the evidence, was presumptively invalid unless shown by the evidence to be valid. No facts were proved suf-cient to rebut the presumption. It is further claimed by appellant that, since Phillips lived four years after the assignment, he was guilty of laches in not moving more seasonably to set the assignment aside. This contention is untenable. So far as appears from the record, the confidential relation and undue influence existing before the assignment continued thereafter to about the time Phillips died, and there was nothing to arouse him to action, hence there was no delay amounting to laches. ' [9] We are satisfied that tbe judgment of tbe court below is right and should be affirmed. By the Court. — Tbe judgment is affirmed, with costs. Rosenbeeby, J., took no part.