*1 description property coming its within exempt not; hold. and so whether portion court’s trial That against awarding J. foreclosure por- Those Duncan is left undisturbed. P. tions of the the above-quoted establishing upon a lien property covered of L. Duncan P. of the chattel clause blanket directing May 1927, 4, proceeds of the foreclosure of the bank lien notes the vendor’s reversed, security as collateral judg- respect of the items cause in to those trial. for a new is remanded ment appel- Cates, Decatur, for Patterson & respects is af- the trial court’s lant. against appeal assessed firmed. Costs Donald, Bowie, H. G. Wood- Donald & appellees. ruff, Taylor, Taylor, Decatur, & Muse part part, reversed and Affirmed Falls, appellee. of Wichita remanded. BUCK, a suit Mrs. L. B. J. White county against the district court of Wise law, M. W. an 1927, alleged: 12, That October 12157.) (No. BURCH. WHITE v. suddenly, husband, White, J. M. died sheriff, investigation by Appeals Texas. Eort Worth. of Civil Court justice peace, county and the 8, 1929. June J. death. of said M. White’s the cause Rehearing 1929. June Denied currency report gained J. That a strych- M. from the had died effects White poisoning, suspicion, on nine and there was Mrs. L. officers White, J. had ad- or her administered, ministered, or caused poison. J. J. said M. White said F. That said jail placed hours. held of her several That on the advice pastor, M. B. in whom she great confidence, had ploy she was induced to em- M. W. Burch as contract of up, drawn terms of which Mrs. agreed promised pay one-half, White after made, deductions certain of the policies: amounts on three collected insurance inOne Bocal Asso- the Sextet Mutual Aid Decatur, $1,500; ciation of of the face value another Bocal Mutual Aid Association County, $1,500; of Wise face value ¡the in the Modern third Woodmen of Ameri- ca, $2,000. value That said Burch plaintiff, to collect said against and charges brought against her and defend her son both of either or them account of M. the death of said J. White. alleged She that said Burch made certain promises statements ability to his to her as successfully represent free her and her son of threatened poisoning them ability lawyer, and of his aas and of his relations with and to the district judge, peace, and that he would see that the
405 house,” anything her, he out that wanted grand jury and he not indict lawyer go no other do so. guarantee not could she would that would penitentiary, danger, answer, in which in imminent defendant filed but that generally allegations by indictment, conviction, sen- of fraud and he denied pleaded that the penitentiary and showed she intrusted and tence her case attorney; with the utmost because contract had been made that to him her as part; that, White investigations Wise faith his when Mrs. and officers of on surrounding daughter of Mrs. and son Mr. Wallis and the circumstances afternoon, mentioned him late in the White came to see he would her home and talk with her of M. the aforesaid death companies would her what he associations with her told talked and insurance refuse to representing insur- and of said her amounts her her the companies son, suggested in of policies; were that she return but further that such ance family conspiracy against her with the of said and her day; policies, and that defeating payment friends she desire come back the next and .the expressed a the murder next and procure did return the her conviction physician husband; attend- but who him as her that the her his death men time of that would like to talk to two at stated White ed said signing, contract; asso- two mutual aid before men were M. L. that in said was interested mentioned, show ciations, would endeavor heretofore he that and pur- Christian, a at merchant and Carl the latter White was murdered that said pre- insurance, collecting her pose and to Mrs. and Decatur with whom family White said traded; policies; telephoned said payment that and that he of said had vent the they finally money, plenty companies that and went to the store of Mr. Chris- down procure spend, convic- and he was in Dallas tian and found that would husband, whether day; back until next that her would not be murder of tion for the go not; they guilty would under- out in that he to have his wife offered she was get country-some lis, prove purchase her Mr. Wal- son seven miles and take he, go White; young that poison but volunteered to J. that administered get Burch, him with him'to one time been and did and returned had himself said county; county attorney that he Burch’s office. Wise operated following stated were debts courts knew how the well wholly husband, agreed conducted; men White and deceased knew that her that he wrongdoing of insur- had nevertheless to be taken of the total amount out innocent been made, before division was sentenced ance collected of crime and convicted penitentiary by the courts terms represent- (defendant) county; he that Wise Bank the First National of Decatur To ring plaintiff was the head (about) that he ed to or house; any things 00 . $500 (funeral expense). 245 00 C. L. Christian clique of the court- in control that was Company, 60 Kennerly Hardware Gainesville... 00 than more for her do that he could & Bank, Krum, State Farmers Merchants town; lawyer do he could that other 40 Texas 00 . do; lawyer could her no Total . $835 the next who the members knew that he be; jury grand would that he that would Mr. Wallis testified grand do who would said these debts before the division “friends” said between through bidding, take it would that Burch Mrs. White was secured his ' him, employed them; intervention; that when she that that he told Burch handle the guarantee very poor prac- people would that he her, except poli- tically grand indict but that she means would the insurance agree certainly cies, so he was be indicted unless him would not would and asked if he the debts should be “to take care of” her her that division was before charges murder; made; that such Burch son her he Davenport, the (defendant) to do so. “elected” A. Davenport attorney; The cause was tried before him, special issues, obligations he was answered each was under Davenport; negative. They (Burch) are as follows: could control the jus- prior making Brady, to the of the con- H. E. “1. Just he also “elected” that tice of inquest peace, tract of the conducted an between who in evidence did J. M. defendant introduced of said of the death the cause following Brady, upon finding White; make the statements of said that the plaintiff: representations inquest, not be favorable and said to would would “(a) very directed; (defendant) serious trouble That she was her as Davenport, J. F. Brady and and and uncle that she of said twenty-four (24) jail them, hours under be in influence over within murdering relationship other, unless she J. M. White be- each of their cause defendant, him, immediately employed “get generally, he influence could of his law- counsel; little out of the court house and that no other were do hundred tliat yer if could do so.” behalf that he could guar- then; an- Other issues were submitted he would had the case go penitentia- swered ease the should answer she would not antee that danger (a) (e) *3 of or affirma- more of issues the ry, indictment, penitentiary him, defendant, imminent the to that she was in ; jury but, the tive since all and answered of sentence conviction negative, case in the were her issues such other issues entrusted unless she attorney? not answered. her as investigations plaintiff alleged “(b) by was That of which reason fraudulently obtained, prayed by surround- insurance and which she officersof the circumstances naught, ing companies M. White the to have canceled and and that of J. held death required her refuse or would the the three be deliver to associations poli- policies said insurance life of insurance her of the amount conspiracy companies White, possession ; were in of M. of which cies that such against plaintiff ing J. she given defeat- of with the had theretofore to defendant as securi- policies ty Burch, attorney’s charged payment by and her insurance for the said of fee procure of the murder her is as conviction physician husband; who attend- her that Texas, County of “State of Wise: of his death at time ed the said White I, presents “Know all men these that insurance mutual was said interested White, White, Mrs. L. B. of J. de- wife M.’ associations, endeavor he would ceased, day employed have this W. Burch M. was murdered that said White show purpose my son, represent my as me and collecting and insurance said of White, against any charges F. J. and all that n thus policy; prevent of said may brought by against be the State of Texas money plenty companies and of ,us concerning either or both of of the death procure spend plaintiff’s con- would County, Texas, M. J. death occurred on inWhite Wise of her husband wheth- viction murder or about 12th guilty or not? er October, A. D. and is that said Burch “(c) having That represent further L. said defendant, he, knew how well B; in the collection all her interest conducted; operated that courts the he knew that wrongdoing policy ain certain owned and her any wholly men innocent of beneficiary (original) Local Mu- Sextet nevertheless been convicted Decatur, Texas, tual Aid Association peni- in the and sentenced terms crime .of all the interest owned and held her in County; tentiary by that the courts Wise policy Group a certain One of the Sextet ring he, defendant, clique or at the head Local Mutual Aid Association of Wise Coun- house was in control that Texas, ty, policies having said been issued to her more for could do for the reason White, lawyer town; J. deceased. any he could that than lawyer agrees “And said Burch for her that .other do represent the to White L. said B. White and J. F. do? could against any charges through “(d) and all who That the members he knew .of be; grand may he would courts Texas wherein that be the next allj charged grand may charged or who either of them friends next on the be deceased, bidding, take with the homicide of J. but that it would F. would do agrees them; money em- and the said Burch that further to handle when to collect guarantee ployed that and receive for Mrs: he would the said L. him that B. White money may grand her but that sums would not indict that she be entitled to said she so certainly he was under virtue of her would be indicted interest in said policies, employed by agrees of her and her to take care and the said Burch further charges of murder? to collect all sums of that under such due son be defendant, owing he, “(e) A. and elected E. the said Mrs. L. B. White Davenport county policy $2,000.00 said virtue of a in the that sum is- obligations Davenport him sued out the Modem Woodmen was under of America. of. he, Burch, “For and in Daven- consideration could control the said his services m that port; Brady H. E. the said B. defense Mrs. L. White and that elected White, against inquest any peace as her conducted an and all who had brought M. criminal the death of have been to the cause of Jr White; findings Brady upon that or both of the above tion of all interests hereafter be either named, inquest and the would would not be favorable collec- directed; he, according defendant, of the said Mrs. B. to that' said L. Brady above the uncle of said Dav- White three mentioned insurance, I, defendant’s, his, enport the said Mrs. L. reason of B. White do relationship hereby assign, transfer sell set influence to each other and because of his influence generally and of and! over over them their said M. W. Burch a one-half undivid- get anything ed interest and to each all of said he wanted could policies, save and Introduced in above mentioned-insurance except established what may. Attorney known in such interest as owned and and law -theRelation of Bank of John First Client between the defendant Simmons National as the client Decatur, approximate attorney; $506.45 sum of as the owing any the law $244.00 of about due time sum client Decatur, Texas, discharge and the to Christian of Carl either with or aon sum without with torney due $50.00 whenever she dissatisfied cbok said Mrs. L. stove) owned the services at- now the If the discharged by $40.00 White and owing further sum of due client without mortgage cause, you by way charged of note and chattel then the attor- ney possession compensation two cows now to reasonable performed, up Mrs. L. B. White. the time of I, discharge. appear *4 “And do here- such the said Mrs. L. B. But if it should to by appoint you discharged by attorney M. W. constitute and the said that the was the ’ my attorney rep- client, therefor, good Burch to lawful true and cause hadi receipt you charged then resent me and collect for to that the attor- me. ney necessary pa- sign any compensation for and all documents is not entitled to what- pers any pertaining Bearing and ever. to the collection of the above in instructions may mind, you following special all sums of be due and will the answer (1) plaintiff discharge above to me under and virtue of the said issues:' Did the de- policies, attorney? Answer, mentioned collect and he is authorized to fendant as her Yes or No. same, compromise (2) you foregoing ques- and settle same If have answered the bring any, affirmative, suit to the collection tion in enforce answer then the fol- any part policies, lowing discharge and as in his issue: Was such with .judgment my Answer, (3) shall be to best interest. cause? or No. Yes If to the foregoing questions you “Witness our hands 21st this the have answered that October, plaintiff, discharged A. 1927. D. as her defendant “Signed: “Signed: attorney what, you L.Mrs. without then under will state your opinion, W. Burch evidence you, “Witnesses: would be a reasonable submitted compensation any “M. “J. -F. for L. amount as services have rendered in her behalf.” any “M. B. Hammond.” We do not think was there error - refusing give requested this issue. returned, Upon the answers of the so question presented plead There was no judgment defendant entered ings right appel or the as to against plaintiff and sued contract ty, as to the cause of action discharge appellee lant to ney. for, adjudged as her attor decreed appellant par- right plaintiff, to dis entered into as one party, attorney be and M. W. either without sustained, upheld, in all questioned by ap and decreed appellee, cause is not pellee, way provi- in full force and effect and the cross-action, sued for a rea binding, rights sions thereof that said Burch be compensation per sonable services contract, awarded his under said right him. This had a formed to do. that the rendered shall have force attorney discharged An client without and effect to sustain just cause is entitled to recover more than proceeds his interest to be derived prior for the value services of the rendered from those certain insurance fore against plaintiff hereto- discharge. attorney to the and client in-this ease did relation of The Judgment given mentioned. until) exist not her sureties her cost fully executed, had been and there From bond for the of court. costs party dealing upon equal fore, each an n basis, appealed. has seeking and the other seeking employment. right of a client Opinion. attorney discharge is not in the case. Certainly attorney discharge Appellee filed a motion to strike because, record, with or without facts from the either cause. But statement of as attorney alleged, damages entitled to recover it has not been filed in time. due discharge without motion has cause. There is But not been submitted since ample authority it, yet, to sustain the cannot at consider and- we this time unjust attorney discharge dispose regard for an the full amount of tract. will case without agreed upon the fee 'effect motion the con have. - assigned Error is to the refusal of the Myers Crockett, 257, 258, In v 14 Tex. trial court to submit special requested Court, Supreme speaking through issue 1 as Justice No. case, Wheeler, “And such a “Toil instructed as a said: the law of where this, pro- had entered case that the contract which has been ceeding for, perform responsible contracted left to make him for his want was thus faith.” conduct of the case Test, 713, See Hunt v. 8 Ala. wrested him his without Am. from Dec. 659. part, seem be fault much to recover the full amount of Neeper Heinbach, holding, the Missouri case of v. that he was Ap 249 S. W. the Missouri con- Court of fee peals, having prev it is said: Where been tracted to be for the services contem- performance by ention of full plated by the acts of from differs the contract. The case Heinbach, Neeper, having Mrs. ready Mr. the common of build- of the contracts cases willing performance.” perform, held, overseers, etc., could recover ers, it has been full decisions, in perform, later that a readiness Therefore, we conclude that we cannot performance, or a tender of findings disturb the respects equivalent performance; in all that, though court to the effect that the contract as made purpose it is so for the sus- upheld, should be defendant be taining action, t.he not so for pro low is entitled to recover thé full amount ascertaining damages. the measure (cid:127) * * * vided the contract. The evidence is The relation of and client ample findings to sustain the peculiar is a and confidential relation. It perpetrated by appellee appellee no fraud was incompatible torney relation, for at- with that upon appellant. testimony accept employment, con- or the *5 himself, wife, Wallis, amply sup and his parties. And, accepting fidence of both an after ports appellee the contention of that he made enjoying the confidence representations by ap alleged none of them, though discharged of one afterwards of pellant as a basis for fraud. evidence (The attorney his client without can- abundantly ample is also to show that the not, general, propriety, accept in an em- charges made in the contract the serv ployment opposite party in the same ices, appellee of were reasonable and custom case. This consideration would ford a be adverted, af- seem to ary.) testimony The of a of number attor attor good why contracts should such neys' Decatur, including of excepted from the rule to which we ney, attorneys Bowie, a number of of Mon attorney be entitled to tague county, attorney Worth, and an of Port recover full amount of the which fee for go to show that the in made he had contracted from his who had proper charges. contract were reasonable and wrongfully prevented performing him from assignment Therefore this is overruled. his contract.” assignment predicated third The is Crye Allday, the case of v. O’Neal & give the failure of the trial court to an in S. W. 253,j Texarkana Court of Civil jury, struction to the to the effect that the Appeals, speaking through Chief Justice attorney spe relation of cial trust and and client is one of Willson, said: “It has this state confidence, and the law re wrongful discharge by that a his the client of quires dealings that all between them shall attorney duty attorney relieves the be characterized the utmost fairness and performance contract, of further of his and good faith; proof that the burden of to es that he recover of the client the sum tablish the faith of transaction is agreed upon the entire service upon We do not believe that covered the contract.” present the facts in this case a transaction Supreme The California, Court of attorney the between an and his client. The Bennett, of case said: “The 392, 393, Baldwin v. 4 Cal. making contract, by of a virtue which the general rule fiduciary as to attorney measure of relation of and client damages in an contract, action for arises, breach of relationship does not involve the correctly given by appellant’s is attorney counsel. and client. It is but the means of * * # ¶0 are, however, this rule there creating relationship. such As said in 6 exceptions, some' where from Corpus Juris, p. 688, the nature of 212: § “When and to (as ease) attorney the contract [an Applies: applies Whom Rule The rule contract], possible client ascertaining no every mode is left of one who acts for another in the ca damage, pre- pacity we will have acquires by his re wrong sented the case a the lationship anomalous ordinarily with- the influence exerted remedy, only adopt out a ure attorney we meas- apply over his client. It does not damages remains, is, which parties to transactions between the made price paid. this, Without while the relation of and client does defeated, parties would be exist, although en- the relation subse couraged quently to violate their contracts similar them, be established between only The defendant not character. his showing breaks preclude where it of such a nature as to contract, deprives parties presumption but also influence, a the of undue as where injury gen- attorney openly the amount of under the a assumes hostile atti complain eral rule. He cannot that a differ- tude toward his client. Neither does the rule invoked, only apply ent rule is when it is the whereby to mere contracts retainer established, carefully compensa- Appeals. Court Civil We have relation is the tion of the plicable ap- find examined the case and do not fixed. rule cited only where such case to that of cases conflict In the cited Mrs. class exists. relationship, Ferguson H. C. executed and delivered to C. virtue acquired conveyances, promissory B. note for the Fitze and Burns from his client Uvalde property, securities, $200, time, etc., action and not to an to secure at the same services, thereof, recover delivered where executed and only question the to on a is one of the said Fitze and Burns a the construction county. Angelina Aft- contract.” certain tract of erwards, land Therefore, maturity note, we conclude that no error and before purchased shown in this instruction. C. and mort- the failure of the court to G. Fitze said note submit gage Burns, paying a from val- Fitze and error, appellant therefor, As fundamental no- uable consideration and without presents proposition any infirmity un defendant’s tice of render of maker that would prevent dertaking note the indictment voidable. Fitze suit grand jury son, being a a the note foreclosure and was to and asked suit, mortgage. filing in her the services he render After the behalf, general appear em it was made to to the court policy, Ferguson ployment, public and voids defendant Mrs. was then insane. entirety, Fáirchild, appointed prac- the contract service for its a The is such I. D. implies promise ticing attorney, guardian of Mrs. the law ad litem pay. Ferguson, specially represent Burch and witnesses her interest promise Ferguson charged by denied that made such case. indict- appellee. Therefore, Angelina not Such whether ment with a trial was the district court of or. promise by appellee depends up felony, commission of a testimony. on a conflict to a two evident convicted and sentenced ly prom years’ appellee imprisonment peniten- made no such term of believed tiary. Later, ample ise. There was to sustain was reversed finding. Therefore, the Court of Criminal and the case such a cannot dis we Appeals *6 against her remanded for a new trial. Sub- judgment ground. turb the on this sequently, case, on another trial of her conclude, whole, We on the that'we cannot again convicted and sentenced trial disturb the rendered penitentiary. prop- this she in a After assignments court, of error over- proceeding er unsound declared be of ruled is affirmed. mind, and in one of state’s in- confined felony insane, stitutions for the Appellant’s Rehearing. On Motion for charge against her was thereafter dismissed. Appellant lengthy vig- files somewhat Between first and second trials rehearing, orous motion for the contract felony charge, employed and states that Fitze and C. B. Burns, defendant below not elect to attorneys, treat practicing rep- Uvalde and to dam- rescinded sue for case, and, resent for their services ages wrongful discharge. plead- performed, executed to them the note ings, mortgage upon. that in the stated event and found Fitze and Burns never herein sued The court hold, only, court Mrs. White was undisputed should in that event evidence that to a cancellation of performed with employed:- written contract The was respect, would, then said Burch Ferguson with show found that Mrs. compos court that he to a was entitled reasonable non mentis at the time she executed already performed. attorneys. fee for the services he had note and On finding The trial court and the the contract made Mrs. did not later asmuch the court further find found that in- White and no services were Mr. rendered subject attorneys Burch was in behalf of cancellation. On the their insane hand, jury definitely pursuance employment, found that allegations none of the of fraud in the note and could be de- pleadings sustained; proof por- fact, hence feated that sues of such and this is all pleading tion of his became case holds the is- ineffective and reference controversy. was not considered We the court or think cases entirely in the verdict and as to the rendered. different facts. conclude, whole, urged squarely It con- We the motion we are rehearing overruled, holding Fergu- flict with the should and it the ease accordingly 500, Fitze, son v. 173 S. W. so ordered. the Galveston