Barber v. Jetmore

227 P. 523 | Or. | 1924

McBBIDE, C. J.

We are not in the position of the learned circuit judge as to the advantage of having before us the actual witnesses and thus being able more accurately to appraise their testimony. We are of the opinion, however, that the charges of fraudulent conduct of the defendant Jetmore are not made out by a preponderance of the testimony. On the contrary, we think that the weight of evidence is that plaintiff Barber was actually guilty of the crime of assault with a dangerous weapon. After one mistrial it appears from the record that he entered a plea of guilty, upon which plea the court imposed a fine, which, with costs, amounted to over $600. It is not denied but that upon the trial and in all preliminary matters the defendant Jetmore rendered entirely satisfactory service. We think the testimony indicates that Barber was in a position where it was entirely probable that he might have been sent to the penitentiary for a term of years, and that when he came to consult Mr. Jetmore, at the instance of his own partner and personal friend, he was exceedingly apprehensive, as he had a right to be, of the ultimate legal consequences of his conduct, and that Mr. Jet-more made no attempt to frighten him into paying an exorbitant fee, but merely read to him the statute, and entered into a contract to conduct the case, through all its phases, for the sum of $5,000, and that the plaintiff Barber was perfectly willing at the time to pay the sum and agreed to do so.

While it appears that Barber was a foreigner and not well skilled in the English language, we think the fact that several letters in his handwriting have been introduced indicates that he had a passable knowledge of ordinary English and was able to understand his situation as well as, and perhaps better than, the average, ordinary American shepherd. It appears from the testimony that he is a Spanish Basque, against whom, unfortunately, there seems to have been some prejudice in that community, and that the man whom he assaulted was a returned soldier, which is a class rather favored in that community, and in all other communities of the state. To say, under such circumstances, that his case was exceedingly critical, if it came to trial before a jury, would be only to assert a plain, obvious fact. He had a good reason for apprehension that he might be convicted and sent to the penitentiary, and that this did not happen may possibly be referred to the adroitness of his defense, concerning which we have no testimony. But the fact remains that by his own plea he was guilty, and the mildness of his sentence might be attributed to the disinclination of courts and district attorneys to go to the expense of long retrials. It will be remembered that the contract between Barber and Jet-more contemplated all possible exigencies of the case, which would have included trials in the Justice’s Court, in the Circuit Court, possible retrials and possible appeals to the Supreme Court, and all the consequences which sometimes prolong a criminal case over months and perhaps years of litigation; and, while the fee charged seems large in view of the actual termination of the case, and might be considered a very large fee under any circumstances, we cannot, as a matter of law, hold that, in view of all possible contingencies as they appeared at the time, it was so exorbitant as to be unconscionable. At all events, we are satisfied that Barber made the contract as it was alleged by the defendant Jetmore, and with his eyes open, and was not deceived by reason of bis ignorance or by any misunderstanding of tbe circumstances.

"We are also satisfied that the purchase of the promissory note by the other two defendants was in good faith and for a valuable consideration. Some objection is made to the jurisdiction of the court to decree the payment of the note in this proceeding, but the defendants Welch and Grodsil were brought into the case at the instigation of the plaintiffs, and set up their rights in the matter and asked for a decree in their favor, to which no objection was made by motion, demurrer, or otherwise. The general rule is that equity, having obtained jurisdiction for one purpose, will proceed to final determination of the matter, without relegating the parties again to the law courts and requiring the merits to be relitigated. We think the court had jurisdiction and acted properly in this case in entering a decree against plaintiffs for the amount of the promissory note.

The testimony in this case is conflicting in some respects, and we have stated our conclusions upon it in preference to going into tedious detail, which would be of no interest to any one except the parties.

After a careful examination of the whole case we are of the opinion that the findings and decree of the Circuit Court were in accordance with the clear weight of the testimony. The decree of the lower court will accordingly be affirmed. Affirmed.

Bean, Band and Coshow, JJ., concur.