40 Barb. 521 | N.Y. Sup. Ct. | 1863
If the decision of this case depended solely on the question whether the signature to the paper was genuine, there should be no hesitation in directing an affirmance of the judgment. There is a most decided preponderance of evidence in favor of its genuineness. On that point the proof is very satisfactory and conclusive. As the case is presented, we canngt doubt but that the signature to the paper is in the handwriting of Doct. Barnes.
The difficulty in the case is in another direction. The recovery was obtained against the executor on a claim evidenced by a singular and extraordinary instrument. The paper is made the foundation of a claim, which without it is wholly or substantially groundless. It was executed by an aged, infirm and feeble man, who had been the client of the plaintiff for many years, and for whom the plaintiff then acted as general agent. The instrument was not witnessed, although under seal; nor is there any evidence of value, apart from the paper itself, to strengthen the claim. The plaintiff's case, as presented to us, rests solely, or as we look upon it, substantially, on the force, strength and legal effect of the paper itself. Regarded as a transaction between strangers, or between persons in no relations of confidence to each other, proof simply of the due execution of the instrument would be sufficient to establish the demand, the agreement being neither unlawful nor immoral in its terms or provisions. But the case is quite different when the agreement sought to be enforced is made between principal and agent, or client and attorney, giving benefits and advantages to the agent and attorney. In such a case the right of action is not deemed to be established on the instrument, without clear proofj outside the paper, of its integrity and entire fairness. The legal presumption is against its validity, and the onus is on the agent and attorney to show that all was fair, and that the client acted freely and understandingly. So if an attorney bargain with his client, the burden is on him of establishing its perfect fairness, adequacy and equity; and if no proof be
In Howell v. Ransom, (11 Paige, 538,) it. was held that it was not necessary to show actual fraud in order to invalidate transactions between attorney and client. And the chancellor remarked, “ if the court is not bound to set aside the sale, [a sale by a client to his attorney] as a matter of course upon the application of the client in such a case, the whole burden of establishing the fairness of the sale, and that it was made upon a full or adequate consideration is at least cast upon the attorney.” There are many other cases to the same effect. (9 John. 253. 10 Paige, 352. 2 Denio, 607. Story’s Eq. Juris. §§ 308 to 324. 7 Sim. 539. 27 Eng. Law and Eq. 168. 3 Cowen, 537. 13 Barb. 524. 31 id. 9. 39 Law and Eq. Rep. 569. 35 id. 100. 16 N. Y. Rep. 285.)
In Savery v. King, the lord chancellor said that when a solicitor obtains a benefit from a client, a court of eqnity expects him to be able to show that he has taken no advantage of his professional position. He adds: this duty exists on the part of the solicitor in all cases where he is dealing with his client. This rule is to have full vigor, whether the client be more or less a man of business. (39 Eng. L. and Eq. Rep. 569.)
In this case there can be no dispute in regard to the fact, that the relation between the plaintiff and Doct. Barnes was one of confidence. If not that of attorney and client, it was that of principal and agent; and in either case the principles of law applicable to the case are the same. According to the authorities, therefore, the presumption is against the integrity of the instrument on which the plaintiff relies for a recovery. The right of action on it can only be sustained by establishing its fairness, and the onus of proof is on him.
If the instrument be deemed to provide a remuneration for past services, then the services must be proved; and further,
The evidence, considered together as a whole, militates against the probability of any previous intention of the testator to acknowledge a liability of the kind or character described in the instrument. The paper was made February 15, 1859, and extends back in its operation to September, 1836, and gives an annuity to- the plaintiff of one hundred dollar’s for each year during that time, and puts it on interest. Yet settlements were repeatedly made between the parties during this period, and numerous receipts were given by the plaintiff, being in terms receipts in full of all claims and demands. In 1848, the plaintiff gave the intestate a receipt in full of all demands of every nature, to that
If we regard the benefits and advantages conferred by the instrument in the nature of a bequest or gift, the paper is wholly -without consideration and void. (Harris v. Clark, 3 N. Y. Rep. 93.) If it be deemed to provide a recompense for future services, then it is to ■ be regarded, in view of the relation which existed between the parties to it, with the same suspicion, and must be held subject to the same rules as if it provided remuneration for past services merely, and can be upheld only on the clearest proof that its contents were well understood by the testator, and that it was made by him to be enforced acccording to its terms. But the paper was not intended to. evidence a bequest; nor is it to
In this case Bennett gave an explanation of the circumstances under which the agreement was made and executed, which tended to show that its execution was fair, without persuasion, and deliberate, yet the court set it aside and spoke of the transaction in the severest terms of censure.
An attorney may bargain with his client, and an agent
But it is insisted that there is evidence sufficient to repel all presumption against the validity of the instrument. It is true there is proof that the plaintiff acted as the agent, attorney and counsel of the testator during the time specified in the agreement. The extent and value of those services are not however very clearly established. Perhaps these points ought to be regarded as - covered in this case, on this appeal, under the ruling demanded by the defendant on the trial, and adopted by the referees at his request. On first examination I was inclined so to hold. To the extent of the ruling demanded and taken by the defendant on the trial he must of course be held and concluded. But on a careful examination it will be seen that the defendant did not ask to have excluded a part of what was necessary .to make up the plaintiff’s case. Ho competent evidence was offered by the plaintiff, or excluded on the defendant’s request, going to show that the instrument was understood by the testator, and that it was intended to stand as evidence of a well considered purpose, and to be enforced according to its terms. We have seen that under the circumstances of this case, this was not to be intended, as in ordinary cases, simply on proof of the execution of the instrument. It does not appear that the body of the paper was in the testator’s handwriting. If it had so appeared this would have afforded the best and most conclusive evidence of the requisite understanding and purpose. If there had been a witness to its execution who could state the circumstances of the transaction, from which it could be seen that it was well considered; or if it could
The testimony of Mr. Town, of Mr. Miller and of Mr. Eichardson bear in some degree on the question. That of Mr. Eichardson seems of very little moment. The substance of the testimony given by Mr. Miller is that the plaintiff ‘was a trusty and faithful agent. The testimony of Mr.' Town is more to the point. He says the testator told him the plaintiff had always done his business well; that he had never paid him any thing, but calculated to pay him; that he calculate^ the plaintiff should have his pay in the end. It will be observed that no intention is expressed of ever giving the paper; nor indeed is any allusion whatever made to it by the testator, first or last, so far as is disclosed by the evidence. .
In answer to the statements or admissions of the testator sworn to by Mr. Town, and with a view to countervail them, the defendant urges, first, the statements and admissions of the .plaintiff, sworn to by Mr. McMasters and Mr. McKinney, and secondly, the receipts given from time to time, in full of all accounts, claims and demands.
The declarations of the plaintiff, as sworn to by McMasters and McKinney, made at the time they represent them to have been made, are not a little remarkable. But if these declarations are laid out of the case where is the evidence to explain the numerous receipts ? Is the evidence of Town,- or his evidence with that of Miller and Eichardson, or considered in connection with any other proof in the case, sufficient to explain and limit their clear import? Of those receipts there are five, not to mention the legal presumption arising from the giving of the note for $74.84.
The first was given in 1848, the last in 1858; each in express terms, being in full of all demands. Ho explanation of these receipts is attempted by any direct reference to them or
In every view of the case, except as to the genuineness of the signature to the instrument, we regard the decision and judgment as clearly against the evidence here presented. The case must go back for re-trial, where the plaintiff will have the opportunity of showing such facts as wiU repel the presumption which now rests against his case.. But inasmuch as a new trial is ordered on the ground that the decision is against evidence, it must be on condition that the defendant pay the costs of the former trial and of the appeal.
Judgment reversed, report of referees set aside, and new trial ordered; but on condition that the defendant pay the costs of the former trial and of appeal,
Rosekrans, Potter, Bockes and James, Justices.]
This case was re-tried before the referees, in pursuance of the above decision, and they again reported in favor of the plaintiff. Judgment having been entered on the report of the referees, a second appeal was taken, to the general term. At the January term, 1864, that judgment was affirmed. On the second trial evidence was given which, in the opinion of the referees, answered the requirements of the law as declared in the foregoing opinion. It is understood that the defendant has appealed to the court of appeals, from the judgment of affirmance, as well on the ground that the case was not changed, in any respect, by the second trial, as on questions in regard to the admissibility of evidence. Reporter.