151 P. 962 | Or. | 1915
delivered the opinion of the court.
Some question was made at the argument by the defendants here about the sufficiency of the complaint respecting the plaintiff’s right to maintain this suit, and they also urged that the deposition of Hansel was rightfully suppressed. We ignore these contentions without deciding them, and treat the case as though the plaintiff here had the right to continue the prosecution of this suit as the successor in interest of the original plaintiff, Oswald O. Hansel. We also assume that the deposition was regularly taken and transmitted to the Circuit Court, and have carefully read the same as part of the evidence in the case.
“The rule is that the facts upon which fraud is predicated must be specifically pleaded. A mere general averment of fraud is nothing but the averment of a conclusion, and will not suffice. It presents no issue for trial, and is bad on demurrer. Such an averment*44 not only renders the bill or complaint demurrable, but it will not even sustain a decree”: 20 Cyc. 734; Leasure v. Forquer, 27 Or. 334 (41 Pac. 665).
Adverbs are not allegations, and to say that a transaction was carried out’ “fraudulently, willfully, by false pretenses” is not sufficient unless the false pretenses are set out and the acts or representations constituting the fraud are clearly stated. So far as the matter is affected by the relation of attorney and client, the statement in the complaint utterly fails to show that the relation existed- at the time the transaction took place or that it influenced the plaintiff’s predecessor in the least. The complaint is insufficient as far as a charge of fraud or undue influence is concerned.
As to the deed subsequently made in favor of Mullins, Hansel utterly denies the execution thereof, but we have the testimony of Mullins himself, of Norblad, and of Jeffries, a totally disinterested witness, all declaring that Hansel read the deed and executed the same understandingly and in full acquaintance with its terms. These witnesses give details and circumstances of the transaction opposed to which is the mere flat denial of Hansel. The weight of the testimony preponderates greatly in favor of the defendants on the issue of the actual execution of the deed.
“The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties. ’ ’
It thus appears that under our statute the matter of inaugurating the relation of attorney and client is a legitimate subject of contract. In point of law it does not differ from any other matter about which parties may agree. Without dispute in the instant case the relation was sought by the plaintiff’s predecessor in interest on his own motion. It was at his instance that the defendant attorneys attended upon him, and
“An attorney is under no actual incapacity, however, to deal with or purchase from his client; all that can be required is that there shall be no abuse of the confidence reposed in him, no imposition or undue influence practiced, nor any unconscionable advantage taken by him of his client. As has been stated, in a transaction of this character the burden is upon the attorney to show its perfect fairness; but if the court is satisfied that the party sustaining the relation of the client performed the act or entered into the transaction voluntarily, deliberately, and advisedly, knowing its nature and effect, and that no concealment or undue means were used to secure his consent to what was done, the transaction will be upheld. * * To entitle the client to relief from a contract or agreement entered into with his attorney, it must be shown that the client has suffered some injury through an abuse of confidence on the part of his attorney. To show merely that the relation of client and attorney existed, and that during the subsistence of the relation the parties entered into a contract, without showing that the client was induced thereto by an abuse- of confidence by the attorney, is not enough.”
In other words, it would not be sufficient for a plaintiff to say:
*48 “I made a contract with a man who was an attorney at the time. I demand that it he set aside. ”
The relation of attorney and client begins when the contract of employment is consummated: 3 Am. & Eng. Ency. Law (2 ed.), 316. Our statute makes the compensation of the attorney a proper subject of contract. The parties approach the subject matter from opposite sides, and deal in the contract of employment on equal terms like participants in any other lawful business. The plaintiff would overturn the agreement thus made merely because one of the contracting parties happens to be a practicing lawyer. Such a contention has no foundation in either law or reason. This, however, is the substance of the complaint in this suit as far as the making of the contract of employment is concerned, and is the purport of the argument for the plaintiff. The authorities cited by the plaintiff all relate to transactions occurring after the relation had been established and the confidence attendant upon the same had accrued. The reason of the rule does not apply to the precedent transaction of parties looking to the employment of an attorney. We fully concur in all the cited precedents say about the good faith required of attorneys in their dealings with clients; but especially in the preliminary bargain the rule goes no further than to ascertain if the parties are free and competent to contract and are not laboring under any impediment caused by fraud, undue influence or abuse of confidence. Even after the confidential relation is established the authorities agree that, if all the facts were known to the client, and he was fully advised of the situation, if no attempt was made to mislead or deceive him to his hurt, and if he knowingly and understandingly entered into the agreement, it is as binding
The burden of the complaint made in argument by the counsel for the plaintiff is that the property first mortgaged and afterward conveyed was disproportionately greater in value, than the reasonable worth of the
The testimony about the value of the property involved, as usual in such cases varies greatly. It consisted of about 100 acres of land near Warrenton, in Clatsop County. Its value, as estimated by witnesses, ranges all the way from $4,000 to $10,000. Admittedly it was encumbered by a mortgage of $1,000 and a judgment paid at $1,876. Besides this, there was the prospect of the state acquiring a lien upon the same in a then unknown sum for the costs and disbursements
“If there is nothing but mere inadequacy of price, the case must be extreme in order to call for the interposition of equity. "When the inadequacy does not thus stand alone, but is accompanied with other inequitable incidents, the relief is much more readily granted. But even here the courts have established clearly marked limitations upon the exercise of their remedial functions, which should be carefully observed. The fact that a conveyance or other transaction was made without professional advice or consultation with friends, and was improvident, even coupled with an inadequacy of price, is not a sufficient ground for relief, provided the parties are both able to judge and act independently and did act upon equal terms, and fully understood the nature of the transaction, and there was no undue influence or circumstances of oppression.”
In its aspect as a charge of fraud the complaint is utterly insufficient. The testimony does not in any sense show a mental condition of Hansel disqualifying bim from entering into any contract he chose to make.
The decree of the learned circuit judge, who heard and saw the witnesses, and who was conversant with all the incidents of the defense, is affirmed.
Aeeirmed. Reheaeing Denied.