McArthur v. Fry

10 Kan. 233 | Kan. | 1872

The opinion of the court was delivered by

Kingman, C. J.:

This was an action brought by the plaintiff in error to compel the execution of the following contract :

“I do hereby employ and retain L. McArthur, of Topeka, Shawnee county, state of Kansas, to institute suit against George W. Ewing to set aside a deed executed by me to him for my undivided interest in surveys'19, 20, 21 and 22, of the Kansas Half-Breed lands, situated in Jefferson county, state of Kansas, on the north bank of the Kansas river, reserved to the four children of Cecile Compare, by the Treaty of A.D. 1825, between the United States and the Kansas Nation of Indians, and to attend to all other litigations concerning said land, he agreeing to attend to the same, and to furnish all moneys necessary to conduct said litigation, and wlien the title to said land is settled in my favor and against said Ewing, and all others adversely claiming the same, then to pay me the further sum of one thousand dollars, and for and in consideration of the legal services aforesaid, and the moneys aforesaid, I do hereby agree to execute and deliver to him, said L. McArthur, his heirs or assigns, a good and sufficient deed, with the proper covenants of warranty, of my interest in said land; the same being survey 20, as partitioned by the district court of Jefferson county aforesaid, excepting and reserving therefrom the northeast quarter of said section 20. Given under my hand and seal this 8th day of March, A.D. 1864. Done at St. Louis, Missouri.

“ Pelagia alias Eliza ¡*j Fey. [seal.]

“Attest: Mary Lawson.” mark-

The district court refused to grant the relief played for, and that decision the plaintiff in error seeks to have reversed in this court. Before the plaintiff would be entitled to the execution of the contract he must show that he has in all respects performed the stipulations on Impart. This he fails to do; but presents as his sufficient reason for not doing so, that on the 10th of January 1866, he was by the act of Eliza Fry prevented from further prosecuting a suit in her favor against Ewing to have his deed set aside; that up to that time he was diligently and faithfully, and with due skill, proceeding in the discharge of the duties of his employment. That he was so prevented is clear. But it is contended that the plaintiff in error by obtaining interests adverse to Eliza Fry, and by his engagements in other suits in relation to this same land adverse to the interests of Eliza, had given her the right to discharge him from further service in the case, or in any other matter connected with his said employment; and whether this was so is the only question we shall discuss, for in our judgment this finally disposes of the case. The facts were found by the court, and all the evidence is preserved,, which makes a record that is simply enorm&us, and no good can accrue to the profession or the cause of justice by an examination of the vast array of facts preserved in the record. It appears from the case that Eliza Fry was the owner of one-third interest in surveys No. 19, 20, 21, and 22 of the Kansas half-breed lands situated in Jefferson county; and whether a certain partition of surveys No. 19, 20 and 21, that had been made by which it is alleged Eliza Fry had become the sole owner of survey No. 20, was a valid one, need not be determined. If it was valid, then she owned the whole of No. 20, and an undivided one-third of No. 22. If the partition was not valid, then she owned an undivided one-third of all four numbers; and either way she was the owner of an undivided one-third of No. 22. Now, when McArthur took the obligation on which this action was founded he was prosecuting an action to recover the whole -of No. 22 for Bowker, the guardian of Charles Lecompte, who could only recover upon a theory wholly inconsistent ■with the rights of Eliza Fry in said No. 22. This employment was not disclosed to Mrs. Fry. Thus the plaintiff in error was undertakhitka duty in favor of Mrs. Fry which he could not perform 1^ reason of his previous obligation to another client. It is true that Mrs. Fry did not seem to lay claim to any part of the land except No. 20, in the conversations between herself and McArthur that preceded the making of the contract, and he insists that now she is precluded from asserting any claim thereto as against him. But this is clearly a mistake. The .written contract speaks for itself. Her interests in all four of the numbers is to be protected by him, whatever those interests might be. There is no limitation, and no reservation. Conversations that led to the employment and the making of the contract cannot be used to contradict the written contract. Another reason equally good might be given: She was ignorant; could not read or write; had no acquaintance with the laud, and resided far from it. As her lawyer, it was the duty of plaintiff in error to inform her of her rights, and not his privilege to rely upon her ignorance of them to build up rights for himself, or others, adverse to hers. But it is claimed that McArthur himself .did not know that Eliza had any interest in No. 22, and this may be conceded as true. The matter seems .to have been in doubt. Still it most clearly appeared from his own testimony that it was a disputed question at that time. Both himself and Eliza spoke of it as such. Her rights in that number, depended upon the question of whether “Charlie” was a reservee or not. Now conceding that McArthur believed that “Charlie” was a reservee, and therefore Eliza had no interest in number 22, still it was his duty to protect her rights in all four of the numbers, a duty plainly assumed in the written contract which he took from her. If after assuming that duty he made a mistake in his opinion as to Eliza’s rights, he made it at his peril, and cannot build upon such mistake any rights for himself as against her. The case stands then, after accepting the agreement in which it is recited that plaintiff in error was employed by her to protect her interests in all four of the numbers, as an attorney-at-law, he still continued to prosecute a suit for another on a theory adverse to her interests in No. 22; and while he was so prosecuting said action to recover the whole of 22 for “Charlie” he was discharged by Eliza, and her interest in pending actions confided to other lawyers. We think the facts justified her in the course she took. She had a right to his entire services as an attorney so far as the land in the contract was concerned; and the fact that he was prosecuting a suit adverse to her interest in number 22 was sufficient cause for her to withdraw her confidence from him and place her interests in the hands of others. The plaintiff in error seems to feel the force of this argument, for he insists that the testimony which supports this finding of the court was improperly admitted under the issues as made up. We do not think so. It was imperative on the plaintiff in error to aver and prove that he faithfully and diligently, and with reasonable skill, proceeded in taking such steps as his client’s interests demanded, and accordingly we find an averment in his petition that he did so, until he was discharged by Mrs. Ery. To this there was a general denial. Under this averment we understand the plaintiff might prove any fact that tended to show the correct performance of his duty; and under the denial of the averment in the answer it was competent to show any want of fidelity to his client in and about the business he was employed in. This conclusion necessarily leads to an affirmance of the judgment, and renders it unnecessary to further discuss the numerous other questions raised in the case, though it is probable that the determination of some of the others would lead to the same conclusion. Judgment affirmed.

All the Justices concurring.