174 Iowa 46 | Iowa | 1916
F. C. Edler, a resident of Jefferson County, died February 24, 1906, leaving a will by which he sought to dispose of his estate, the principal item of which was 310 acres of land. He left surviving him his wife and seven children: F. H. (or Henry) Edler, Matilda Frazier, John L. Edler, L. G-. (or Lew) Edler, William P. (or Peter) Edler, David Edler and Frank H. Edler, all of them being of adult age. The will was filed for probate but, its terms not being satisfactory to at least some of the family, a contest was contemplated; later, the will was withdrawn and the estate settled by agreement. About the same „time, the children, or some of them, were considering also the matter of applying to the court for the appointment of a guardian to take charge of the property of their mother. One of the heirs, Henry Edler, applied to the interveners, Crail & Crail, then engaged in the practice of law at Fairfield, for advice, and proposed to employ them on behalf of the heirs on the basis of a contingent fee. After some talk, the parties separated, with the understanding that Henry would get the other heirs to come with him to the office of the Cr ails for further consideration of the subject of employment. Later, a written agreement was drawn, by which it was stipulated that the heirs employ Crail & Crail to look after and protect their interests as prospective heirs of the estate of their mother and procure for them their respective shares therein after their mother’s death, and especially their shares in a certain described tract of land, and that, as compensation for such services, Crail & Crail were to receive a sum equal to 20 per cent of the value
In answer to the petition of intervention, the heirs, except John and Frank, united in an answer denying the claim of Crail & Crail and their right to any lien upon the proceeds of the partition sale. Further answering, they say that if they signed the alleged contract they “were not fully advised of its meaning and purport and did not understand or know what they were signing”, and deny that they' are bound thereby. They further say that they have little or no education and “some of them” cannot read or write the English language, and those who can read or write do so with difficulty, and “some of them” cannot write their own names. They further say that they were solicited by Crail & Crail and were persuaded by them that it was necessary that they have legal counsel to protect their interests and that such attorneys would attend to such duties and that their fee would be light and would come out of the property after the death of their mother, but they neglected and failed to explain to defendants the meaning of “twenty per centum” and intentionally withheld such explanation, whereby they deceived and misled defendants into signing such contract. They further allege that the action in partition has proceeded to such stage that the land has been sold for about $9,000. It is otherwise made to appear that a portion of the selling price has, by order of said court, been withheld from distribution to await final adjudication of the claim of the interveners.
Upon hearing the evidence, the trial court dismissed the petition of the interveners, suggesting in a written opinion that the decision was based upon the theory that the contract between the interveners and the Edler heirs was made between counsel and client, and that the burden was therefore upon the former to show that the agreement was fair in its terms,
I. The somewhat unusual character of this case has led us to examine the evidence as to this contract and the circumstances of its making with considerable care, and we are strongly impressed with the view that the conclusion reached by the trial court cannot be sustained.
“There was no confidential relation existing between the parties at the time, and the technical relation of attorney and client did not then exist; and the circumstance that litigation might ensue, in order to protect the interests of McLellan in the partnership or paving contracts, will not materially alter the rights of the parties. Before an attorney undertakes the business of his client, he may contract with reference to his services and the amount of his compensation, and even, as the cases cited show, for a contingent fee or reward because no confidential relation then exists, and the parties deal with each other at arm’s length.”
The court then further says, and we think it appropriate here:
“Evidently, when the parties are standing upon an equal footing, they have a right to determine, each for himself, upon what terms the relation shall be formed, and such we understand to be the transaction in the present case; and, as no confidence can be said to have been first extended, it is difficult to say upon what ground the plaintiff is under the necessity of vindicating the fairness and reasonableness of the contract, as a condition of enforcing it.”
This rule is restated in 2 Ruling Case Law, p. 1036, 1037, in substantially the same terms:
“Before an attorney undertakes the business of a client he may contract with reference to compensation for his services,.as no confidential relation then exists and the parties deal with each other at arm’s length”. After a very copious reference to the authorities the editor of that work lays down the rule that “a contract made under such circumstances is as valid and unobjectionable as if made between other persons not occupying fiduciary relations, and who are, in all respects, competent to contract with each other . and the attorney, as a condition of enforcing it, is not bound*54 to show that it was just, fair, and reasonable as is often held to be his duty in ease of contracts made after the inception of the relation of attorney and client”.
Many other authorities could be cited to the same effect, but we have mentioned enough to indicate the recognized rule. Indeed, any other rule would be most unreasonable. The lawyer has the same right as any other man to prescribe the conditions on which he will undertake to perform any given service. If the client thinks the terms unreasonable or oppressive, he is under no compulsion to employ him. The country is full of lawyers, and among them he doubtless can find those who may be retained on terms satisfactory to him. If, however, he accepts the terms and agrees to pay, then, under all ordinary conditions, he is bound by every principle of law and good morals to make payment accordingly, and it would be an unjust reflection upon the profession to lay down the rule that such an agreement comes into court bearing the brand of presumptive fraud, and that before it can be enforced, the plaintiff must put it through a process of legal fumigation by showing affirmatively that it was entered into without deceit or undue advantage. This is not to say that a contract which bears upon its face the evidence of undue advantage over the client will be held any more sacred in the hands of a lawyer than when sought to be enforced by any other person, and, when it clearly appears that the contract is unconscionable or manifestly oppressive or that an agreement for extraordinary compensation has been obtained by the solicitations of an “ambulance chaser” or the use of other unprofessional arts to entrap the ignorant or unwary, no court will hesitate to protect both the honest client and the reputable lawyer by compelling him who asks the benefit of such agreement to purge it of its apparent inequity. Ryan Bros. v. Ashton, 42 Iowa 365. In our judgment, the contract between the interveners and the Edler heirs was an agreement preliminary to their service, fixing the agreed compensation for their professional services to be rendered, and
“I made my mark. I remember you (Mr. Crail) reading the paper over to me. I remember that you explained that all my brothers and sisters had signed it or one just like it. I said at the time if they signed it, it suited me all right. I don’t remember whether Henry agreed to it or not, but I know I signed that paper there at Lew’s.”
Mrs. Frazier testifies at first that she remembers but one paper and that was a “paper for guardian over mother”, yet later concedes that the contract was read over to her in interveners’ office before she signed, but that she then protested she did not understand it. The interveners’ testimony is to the effect that their firm was first interviewed on this business by Henry Edler, who at that time asked them upon what terms they would take up the business, saying that he had no money for that purpose, and asked that they “take it on shares”. Interveners at first suggested a contingent fee of 25 per cent, or one fourth, but Edler held out for better terms, and they finally told him that, if he would get the rest of the heirs to join, they would perform the service for 20 per cent, and they finally agreed upon that figure. A few days later, Henry came back with Frank and Mrs. Frazier, and the three then signed the contract in interveners’ office. They further testify that the subject of fees and percentage named was
Taking the testimony as a whole, we think it not open to reasonable doubt that the heirs who signed the contract understood its terms, and that they were neither deceived nor misled by the interveners. It is probably true that they did not foresee or expect a marked rise in value of the property during the remainder of their mother’s life, and, had they been gifted with the power of prophecy, and known in advance what a 20 per cent contingent fee would amount to when the right thereto would ripen seven years in the future, they might have hesitated or refused to agree to the proposition. Indeed, that is the great burden of their complaint on the trial. Their counsel shrewdly asks each in substance, “If you had then understood that under this contract Crail & Crail would in the end become entitled to a fee of $1,500 to $2,000, would you have signed it ¶ ” and, very much of course, each responds with a more or less emphatic negative. But this we must say is not the material question. Interveners are not seeking to recover upon a quantum meruit, but upon contract,. and, unless it is shown that the contract was obtained by means which would justify the court in setting it aside or ignoring
“Courts of equity are in the habit of giving effect to assignments of contingent interests and expectancies, whether they are in real or personal property, ‘not, indeed, as a present positive transfer, operative in praesenti, for that can only be done of a thing in esse, but as a present contract, to take effect and attach as soon as the thing comes in esse’.”
This proposition has the support of very many eases cited
Further discussion of the case is unnecessary. For the reasons stated, the decree appealed from, so far as it affects the rights of the interveners, is reversed, and cause remanded with directions to enter a supplemental decree for the interveners establishing their claim to receive 20 per cent of six sevenths of the proceeds of the sale of the land in question, with interest thereon from the date of the decree of distribution heretofore entered. Costs will be taxed to the appellees. — ■ Reversed and Remanded.