82 Va. 394 | Va. | 1886
(after stating the case), delivered the opinion of the court.
We are of opinion that the decree is erroneous. A careful examination of the record leaves no room for doubt that the evidence, so far from overcoming sustains the answer of the appellant in every essential particular. It is unnecessary, therefore, to decide whether an attorney may lawfully purchase from his client, pendente lite, the subject matter of his employment (as to which, see Rogers v. Marshall, 3 McCrary, 76; 2 Lead. Cas. Eq., Pt. II, p. 1216 et seq.); for no such question properly arises in the present case.
Thus, in a letter written from Wytheville, dated January 16, 1878, after referring to certain other matters, he inquires of the appellant,-whether he would “like to purchase a balance on three of the White Sulphur coupons (1861, ’62, and ’63),” and says: “They are held here by Mr. Gibboney and Robert Crockett in payment of some debts due by my mother’s estate,” and then he proceeds to give other information respecting them, which would have been wholly unnecessary if the appellant had been previously employed as counsel to collect them. And in a letter to the appellant, dated the 24th of the same month, he says: “I will arrange with Mr. Gibboney to get you to collect the bonds,” meaning the coupons.
It also appears that in April, 1878, in response to a letter of the appellee, the appellant wrote expressing his willingness to act as counsel in several matters for the former, including the collection of the Gibboney coupons. At the same time he drew up a written agreement, stipulating for the measure of compensation for his services, which he transmitted to the appellee to be executed. But the latter, instead of executing ‘ and returning the agreement, copied it, taking care, however, to omit so much as related to the coupons; and this modified paper, with his signature attached, he enclosed to the appellant. Yet he files with his deposition, as evidence in the cause, the original draft of the agreement, signed by himself—when, it does not appear—but which never became a perfect instrument.
Moreover, the answer avers that prior to and until the assignment of the claims in question they “were represented as attorney and counsel solely and exclusively by the late Hon. Samuel Price,” a distinguished member of the West Virginia bar; and the evidence tends to show, if it does not conclusively show, that such was the fact.
In addition to these facts there are other circumstances disclosed by the record tending to the same conclusion—namely, that the appellant was not at any time the counsel of the appellee in relation to the subject matter of the assignment in question.
The appellee, however, contends that no matter whether the relation of counsel and client existed between the parties or not, the assignment is void, because obtained by fraud. But here again the charge is not sustained by the proofs.
As to the price for which the sale was made, it is sufficient to say that an executed contract will not be set aside for mere inadequacy of consideration. It is only in those cases where the inadequacy of price is so gross as to lead to the irresistible inference of fraud that a sale made without imposition, between
“ Where a legal capacity is shown to exist, that the party had sufficient understanding to clearly comprehend the nature of the business, that he consented freely to the special matter about which he was engaged, and no fraud or undue influence is shown to have been used to bring about the result, the validity of the disposition cannot be impeached, however unreasonable or imprudent or unaccountable it may seem to others. It is not the propriety or impropriety of the disposition, but the capacity to make it, and the fact that it was freely made with the full assent of the grantor, that must control the judgment of the court.” Greer v. Greers, 9 Gratt. 330. See also Eyre v. Potter, 15 How. 42; Dunn v. Chambers, 4 Barbour, 376; Crebs v. Jones, 79 Va. 381.
In the light of these principles and the evidence in the case, the question as to alleged inadequacy of consideration may be laid out of view. Nor can the decree be sustained on the ground of actual fraud. In Atlantic Delaine Co. v. James, 94 U. S. 207, the court say: “Cancelling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear.”
So, in Hord v. Colbert, 28 Gratt. 49, it is said that “the party alleging fraud must clearly and distinctly prove it. If the fraud is not strictly and clearly proved as it is alleged, although the party against whom relief is sought may not have been perfectly clear in his dealings, no relief can be had.” See also Gregory v. Peoples, 80 Va. 355.
In short, the evidence disproves the charge of fraud, and the circuit court, instead of cancelling, ought to have upheld, the assignment, and decreed accordingly.
The decree will therefore be reversed, and a decree entered here in conformity with this opinion.
Decree reversed.