110 N.J. Eq. 639 | N.J. Ct. of Ch. | 1932
The bill of complaint herein is filed to require the defendant, an attorney-at-law, to account for moneys of complainant which came to defendant's possession and for which he has not accounted. The proofs disclose that on May 31st, 1930, complainant's wife sustained injuries resulting in her death on the same day. On the following day, June 1st, complainant retained defendant to represent him in seeking a recovery of damages from the owner of the automobile which occasioned the death of complainant's wife. On the day thereafter, June 2d, the defendant, and one Edward Ward, who was employed by defendant to investigate the happening upon which complainant predicated his claim for damages, called at complainant's home to discuss the matter with him, and *640
in the course of conversation complainant casually remarked that he believed his stepson had taken possession of policies of insurance issued by the Prudential Insurance Company of America upon the life of complainant's wife and expressed his surmise that said policies were in the custody of his stepson's attorney. The complainant, accompanied by the defendant and two other persons, went to the office of said attorney, who, upon demand therefor, delivered said policies to complainant, and said policies on the same day were presented to the superintendent of the Hackensack office of the insurance company with whom complainant filed formal proof of claim for the payment to him of the sum of $3,067.70, the aggregate amount of said policies. A check (Exhibit C-1-A) signed by said superintendent, bearing date June 3d 1930, and upon which is noted — "in full settlement of claim under policies 63323622, 66180287, 68458905, 77736342," the policies issued upon the life of complainant's wife, was turned over to defendant by a subordinate of said superintendent; the reason for the turning over of said check by the representative of the insurance company to the defendant has not been satisfactorily established herein. On the same day and shortly prior to defendant's receipt of said check, complainant received a telephone call requesting his attendance at the defendant's office, and when in response thereto he attended at the defendant's office he was informed by the defendant that the driver of the automobile which occasioned his wife's death was not insured but that defendant believed the sum of $1,500 could be obtained in settlement of complainant's claim, and defendant then and there presented to complainant a paper-writing which he represented to be a release which complainant should sign and leave with him in order that he might effect a settlement of complainant's aforesaid claim. Complainant signed said paper-writing without having read it. He testified that he was unable to read it because he had broken his eye-glasses a few days previously and had not yet obtained new glasses in their stead, and without the aid thereof he was unable to read. He testified that he relied upon defendant's representation that the paper-writing *641
which he was asked to sign was a release as above stated. The defendant had complainant endorse his name upon the check mentioned. Complainant testified that the defendant in requesting him to endorse said check stated he would be obliged to make use thereof in making payment of moneys to the insurance company and to several other persons in complainant's behalf. The proofs indicate that the complainant trusted the defendant implicitly and therefore readily endorsed said check and left same with the defendant who deposited it in his own bank account against which he drew his own checks to the order of several persons named and for amounts mentioned in said paper-writing, one of the items of which reads: "To yourself, for legal services for which I am indebted to you, one thousand four hundred seventy-five ($1,475) dollars." All the complainant received from defendant from said sum of $3,067.70 was the sum of $1,196.95. The complainant was not at said time indebted to the defendant for legal services or otherwise, nor had the defendant been employed by complainant to obtain payment for him of the aforesaid insurance moneys. The proofs herein establish that there was no necessity for such employment. Not only was there no dispute or question of the insurance company's liability for payment under said policies of insurance, but it is clearly manifest from the proofs herein that on the very day that said policies were turned over to the superintendent of the company the latter issued his check in payment thereof. Defendant claims complainant agreed to pay him fifty per cent. of the amount payable by the insurance company under the policies of insurance mentioned. Complainant denies such agreement. I am convinced of the truthfulness of complainant's testimony and of the untruthfulness of defendant's testimony with respect thereto. In Riehl v. Riehl,