Palms' Admrs. v. Howard.

had, in the face thereof, persisted in claiming the land, paying the taxes thereon, and to appellee a salary for such services as the latter rendered under the contract between them, such conduct would have relieved appellee of any responsibility as to results, and estopped Palms or his administrators to demand a return of the sums paid him. It does not appear that any material effort was made by appellee to procure a purchaser for the land, which he agreed to assist in doing and claims to have rendered some service to his client in attempting to accomplish. It is true prospective purchasers occasionally presented themselves, but it does not appear that they were taken by appellee to see the land. Whether this was because inspection of the land would have disclosed to the intending purchaser its actual possession by others, or whether, as intimated in the record, appellee was apprehensive of bodily injury to himself or others. contemplating the purchase of the land, from the persons in possession, we are unable to say; but, whatever the deterrent, it seemed sufficient to keep him off the land.

The law is emphatic in its denunciation of anything amounting to deception or fraud on the part of the attorney toward the client; and it is the policy of the courts, where complaint is made by the client, to examine critically transactions between them, that the rights of the client may be protected against any attempt of the attorney to secure any advantage to himself. In such case proof of actual fraud is not necessary in order for the client to obtain relief. The confidential relation being established, any disadvantage resulting to the client from a transaction with the attorney will be held sufficient to authorize the court to interfere in behalf of the former. The doctrine

Palms' Admrs. v. Howard.

referred to is thus discussed in Story's Equity Jurisprudence, section 310: "It is obvious that this relation (of client and attorney or solicitor) must rise to great confidence between the parties and the very strong influence over the actions and rights and interests of the client. The situation of an attorney or solicitor puts it in his power to avail himself not only of the necessities of his client and of his good nature, liberality, and credulity, to obtain undue advantages, bargains, and gratitudes. Hence the law, with a wise providence, not only watches over all the transactions of parties in this predicament, but it often interposes to declare transactions void which between other persons would be held unobjectionable." "A person

standing in the relation of attorney must bring everything to the knowledge of his client that he knows. pertaining to such position. Cases of undue concealment sometimes arise from the relation of client and attorney. In these cases the law, in order to prevent undue advantages from the unlimited confidence which the relation naturally creates, requires that there must be the utmost degree of good faith in all transactions between the parties. If there is any misrepresentation, or any concealment of a material fact, or a just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the contract void, and as far as possible restore the parties to their original rights." Story, Eq. Jurisprudence, sections 192-219-311; Weeks on Attorneys, sections 258, 259, 262; Burch v. Nicholas, 80 S. W. 1132, 26 Ky. Law Rep. 264. It must not be overlooked that in such transactions as occurred between appellee and the decedent, Palms, the onus of proving that the former took no advantage of his client is upon him; for, as said in 3 Greenleaf, section 253: "The great principle

Palms' Admrs. v. Howard.

by which courts of equity are governed in cases between attorneys and clients is that he who bargains in the matter of advantage with a person placing confidence in him is bound to show that a reasonable use has been made of that confidence." Hill v. Phillips, 7 B. Mon. 308.

We are of opinion that appellee, in his dealings with the decedent, Palms, failed to manifest that skill, diligence, and good faith required of an attorney; that his conduct throughout was not such as constituted a fair or reasonable use of the confidence placed in him; and that his concealment of the true state of Palms' title and claim to the land described in the record induced the latter to enter into the contract between them, and caused him the unnecessary outlay and expense complained of, amounting in the aggregate to more than $10,000. This being true, it was plainly the duty of the lower court to give judgment against him and in behalf of appellants for the amount illegally received by him, from and after May 17, 1895, of the decedent, Palms, as salary; this sum being all that is claimed by appellants.

As appellants are not seriously insisting in this court upon a judgment for the taxes paid by their decedent upon the 19,000 acres of land, and the proof being somewhat indefinite as to the amount thereof, we express no opinion on that subject.

It was, however, error on the part of the circuit court to allow appellee's counterclaim, for no legal services were rendered by him under the contract with Palms for which he is entitled to be compensated. Therefore his counterclaim should have been dismissed. In other words, as said in the extended opinion on the former appeal: "The contract contemplated that Palms had land for Howard to look after,

Farmers' Bank of Wickliffe v. City of Wickliffe.

and when there was no land for him to look after the contract ipso facto terminated. When there was no land for Howard to look after, there was no need of notice by Palms to terminate the contract."

For the reasons indicated, the judgment is reversed, with directions to the lower court to set it aside and enter in lieu thereof another in favor of appellant and against appellee, for the amount of salary paid the latter by the decedent, Palms, under the contract between them, from May 17, 1895, down to the date of his (the decedent's) death, with 6 per cent. interest on each payment from the date thereof, and also adjudge the dismissal of appellee's counterclaim.

O'REAR, C. J., not sitting. Petition for rehearing by appellant overruled.


Farmers' Bank of Wickliffe v. City
of Wickliffe

Appeal from Ballard Circuit Court.

R. J. BUGG, Circuit Judge.

From a judgment dismissing the petition the plaintiff appeals-Affirmed.

Municipal Corporations-Warrants-Demand for Payment-Prere quisite to Suit.-Suit does not lie on warrants drawn on a municipal treasurer without allegation and proof of their presentation to him with demand for payment, or of facts excusing presentation and demand.

Farmers' Bank of Wickliffe v. City of Wickliffe.

J. B. WICKLIFFE for appellant.

REEVES & SHARP for appellee.


The appellee, city of Wickliffe, is a municipal corporation of the fifth class, and the appellant, Farmers' Bank of Wickliffe, is a banking corporation doing business therein. The municipality had become indebted to various parties, to each of whom a city warrant had been issued for the amount due him. All of the warrants, aggregating the sum of $6,892.05, had been purchased by the bank from the respective owners, who had regularly assigned the claims to it. Alleging that its debt was due and unpaid, the bank instituted this action in the Ballard circuit court for a judgment. The city did not in its own name make a defense to the action against it, but the court permitted divers citizens and taxpayers to interpose a general demurrer to the petition. This demurrer was sustained by the court, and, the appellant declining to plead further, the petition was dismissed, from which judgment the bank has appealed.

The following sections of the Kentucky Statutes of 1903 are pertinent to the question as to the sufficiency of the allegations of the petition:

"Sec. 3640. All demands against such city shall be presented to and audited by the city council, in accordance with such regulations as they may, by ordinance, prescribe; and upon the allowance of any such demand, the clerk shall draw a warrant upon the treasurer for the same; which warrant shall be countersigned by the mayor, and shall specify for what

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