Sidebilder
PDF
ePub

ing to them [describing the 200 acres], which said lease has been assigned to you, there became due on the 1st day of January, A. D. 1919, and there is now due and unpaid, the sum of two hundred ($200) dollars. You are hereby notified that, unless the said amount is paid to me within thirty (30) days from the date of the service of this notice on you, I shall consider the lease forfeited and at an end."

can be mined and taken out, within 12 months | ary, A. D. 1906, by William T. Fowler, lessor, from the date of this agreement, prospecting to G. H. Goodall and C. A. Gent, lessees, leasof these lands to be completed within 6 months from the date of this agreement. And it is further agreed that the party of the second part, its successors or assigns, after they have commenced sinking shaft, shall continue in good faith until the coal is reached and actual mining operations begun, unless prevented by strikes, lockouts, or other unavoidable accidents; it being further understood that said party of the second part, their successors and assigns, shall begin taking out coal from the above lands within 3 years from the date here- The amended bill further alleged that the of. In the event coal is not taken out by the defendant failed to pay either of said sums end of the third year from the date of this of $200 and $40, or any part thereof, and lease, all payments of annual rental of $1 per that on September 12, 1919, the lessor servacre, as aforesaid, including the annual rent due at the end of the third year hereafter, ed a written notice on the defendant that shall not be considered as advanced royalty, the lease had been forfeited by its terms, but shall be paid to said lessor as bonus, and as compensation for the prolongation of the time within which to begin mining said coal, which said payments after the end of the second year shall not be deducted from the monthly payments of royalty as above set forth."

The lands described in the lease consisted of two tracts of land, separated by a 40acre tract. One tract contained 40 acres and the other tract contained 200 acres. In the amended bill of complaint it is alleged that in the month of June, 1909, the lessees or assigns began taking out coal from the 40-acre tract, but that they had at no time made any attempt to begin mining operations on the 200-acre tract, or upon any lands contiguous or adjacent thereto. The amended bill further alleged that on January 1, 1919, there became due under the terms of the lease from defendant in error to the lessor, as an annual rental for the 40-acre tract, the sum of $40, and that the lessor on the 1st day of August, 1919, served upon the defendant a written notice and demand as follows:

"Pursuant to the terms of a mining lease made and executed on the 12th day of February, A. D. 1906, by William T. Fowler, lessor, to G. H. Goodall and C. A. Gent, lessees, leasing to them [describing the 40 acres], which said lease has been assigned to you, there became due on the 1st day of January, A. D. 1919, and there is now due and unpaid, the sum of forty ($40) dollars. You are hereby notified that, unless the said amount is paid to me within thirty (30) days from the date of the service of this notice on you, I shall consider the lease forfeited and at an end."

It was also alleged in the amended bill that on January 1, 1919, there became due to the lessor as an annual rental, and as compensation for the prolongation of the time in which to begin mining coal, the sum of $200 on the 200-acre tract, and that in consequence of the defendant's refusal to pay the same the lessor served on the defendant on August 1, 1919, a notice and demand in writing, as follows:

"Pursuant to the terms of a mining lease

and that there was then due and unpaid, after notice and demand, the sum of $240, and that the lessor had elected to forfeit the lease, and declared the same forfeited and at an end, pursuant to said notice and demand. Demand was also made to have the lease released of record, and notice was given that, unless the demand was complied with within 60 days, proceedings to compel the release would be commenced. The bill alleged that defendant did not comply with said demand and that therefore the suit was brought.

[6] The only provisions contained in the instrument in question for a forfeiture was for a failure to pay royalty, and it will be noticed from the allegations of the bill that the sums of $40 and $200 claimed to be due January 1, 1919, and demanded of defendant by the lessor on August 1, 1919, were sums which were claimed to be due for rent, and not for royalty. While there is an allegation in the bill that at times defendant had deducted one-half of the royalty, there is no allegation in the bill as to the amount of such deductions, nor was any notice or demand for the same served on defendant in error in accordance with the terms of the instrument, and the lease cannot be held to have been forfeited by reason of nonpayment of royalty. By the instrument in question royalties and rents are each defined and they are each distinct from the other. The, notice of forfeiture of September 12, 1919, was based on the demands of August 1, 1919, and these demands were demands for rent, and not for royalties, and could not serve as the basis for the forfeiture of the instrument in question, by which a freehold was conveyed.

[7] It is contended by plaintiffs in error that defendant in error never having attempted any mining operations with reference to the 200-acre tract, this failure was a breach of the contract, and that plaintiffs in error had a right to forfeit the same for that reason. Whether under the terms of the instrument in question plaintiffs in er

(146 N.E.)

no allegation in the bill that the lease was 7. Attorney and client 38-Effect of canons forfeited on account of such breach, and of ethics of the American Bar Association stated. the notice of forfeiture places the forfeiture upon a different ground.

The

[8] Upon the hearing of the demurrer all the allegations of the bill were to be taken most strongly against the pleader. amended bill having failed to show that plaintiffs in error were entitled to relief. the court properly sustained the demurrer.

The decree of the circuit court is affirmed.
Decree affirmed.

[ocr errors]

Canons of ethics of the American Bar Association are not binding obligations, though they constitute a safe guide for professional conduct in cases in which they apply, and an attorney may be disciplined by the Supreme Court for not observing them.

8. Attorney and client 113-Attorney required to disclose adverse retainers to prospective client.

It is attorney's duty to disclose to prospec

DUNCAN, C. J., and FARMER and DUNN, tive client every adverse retainer and every priJJ., dissent.

(315 Ill. 293)

HUNTER v. TROUP et al. (No. 16350.) (Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 10, 1925.)

1. Trial 178-Evidence taken in light most favorable to plaintiff, on defendant's motion for directed verdict.

A motion to instruct a jury to find for the defendant is in the nature of a demurrer to the evidence, and the evidence and all reasonable inferences arising therefrom must be taken most strongly in favor of the plaintiff.

or retainer which may affect the discretion of the client.

9. Attorney and client 130-Attorney's undisclosed possession of invalid deed from testator held not to preclude recovery of compensation.

Attorney's possession of invalid deed from testator, without disclosure thereof to executors, held not to preclude recovery of compensation for services rendered executors.

Duncan, C. J., and Thompson, J., dissenting.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Kankakee County; A. W. De Selm, Judge.

Suit by W. R. Hunter against H. H. Troup and others. Judgment for defendants was 2. Appeal and error 927 (7)-Evidence fa- affirmed by the Appellate Court, and plainvorable to plaintiff only considered, in review-tiff appeals. Reversed and remanded. ing action of court in directing verdict for deSee, also, 226 Ill. App. 343. fendant.

In reviewing action of court in directing a verdict for defendant, the Supreme Court will not weigh the evidence, but will look only at that which is favorable to the plaintiff.

3. Attorney and client ~166(3) Evidence held to establish prima facie case for attorney, in action for compensation.

In attorney's action for services rendered the estate of a decedent, evidence as to services and value thereof held to make out a prima facie case for the attorney. 4. Judgment

Green & Palmer, of Urbana, and W. H. Dyer, of Kankakee (Henry I. Green and Oris Barth, both of Urbana, of counsel), for appellant.

Walter C. Schneider, pro se, and Miller & Streeter, all of Kankakee, for appellees.

HEARD, J. At the May, 1920, term of the circuit court of Kankakee county appellant brought suit in assumpsit against appellees. Appellees filed to appellant's declaration a plea of the general issue, with notice of spe725 (1)—Judgment not conclu- cial matters of defense. A jury trial was sive as to immaterial fact found.

In order that a judgment may be conclusive evidence of the fact sought to be established by it, it must appear that the same fact, not only was in issue and determined in the former suit, but that it was a material fact

therein.

5. Judgment ~725(1)-Finding of facts not necessary to uphold judgment does not conclude parties.

A finding of facts not necessary to uphold a judgment does not conclude the parties in a subsequent suit.

6. Trial 178-On motion for directed verdict, court can only consider competent evidence.

had, resulting in a directed verdict for appellees, and a judgment thereon in favor of appellees and against appellant in bar of the action and for costs. An appeal was taken to the Appellate Court for the Second district, where the judgment of the circuit court was affirmed, a certificate of importance granted, and an appeal, which has been perfected, allowed to this court.

Appellant's declaration consisted of the common counts and a special count, alleging his employment as an attorney at law by appellees to render professional services for them in and about the business of the estate of Madeline E. Huling, deceased, of which appellees and W. I. Holcomb, now deceased.

On motion for directed verdict, the court were executors, an acceptance of the employcan only consider competent evidence.

ment, and the rendition of services to them

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-21

Five attorneys, practicing in Kankakee, placed the value of appellant's services at from $4,000 to $5,000. This evidence made out a prima facie case for appellant.

as such attorney until May 1, 1917. The no-, to the executors in and about the matter of tice of special matters of defense relied upon the estate from July 1, 1914, to April 19, 1917. by appellees, so far as they pertain to the question here involved, was that, at the time appellees employed appellant and during the period when he rendered the services sued for, appellant was not free and able to represent appellees solely and without prejudice, because at and during said time he secretly claimed to have title to and rights and interests in the homestead premises belonging to the estate of Mrs. Huling, which alleged title, rights, and interests were adverse to, and conflicted with, the title, rights, interests, and duties of appellees, and that neither of appellees at the time of the employment of appellant, nor at any time during the period services were rendered by him, had any knowledge of such claim, and that appellant falsely and fraudulently concealed from appellees the fact that he had or claimed such interest in said real estate, and that appellees had no knowledge of such claim until September 20, 1919, when appellant recorded an alleged deed, dated December 9, 1908, by which Mrs. Huling purported to convey to him the said homestead premises, and that during all of said period when the services were rendered appellant led appellees to believe that the premises were owned by Mrs. Huling at the time of her decease, and were part and parcel of the estate owned by her at the time, of her death, and passed to appellees by virtue of her will, and led and caused them to treat said real estate as such, to the injury of said estate.

[1, 2] A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff's declaration. In reviewing the action of the court of which complaint is made, we do not weigh the evidence; we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414, 99 N. E. 687; McCune v. Reynolds, 288 Ill. 188, 123 N. E. 317; Lloyd v. Rush, 273 Ill. 489, 113 N. E. 122.

[4, 5] The only other evidence in the case was a decree entered in the circuit court of Kankakee county at the January term, 1921, in the case of H. H. Troup and Walter C. Schneider, executors of and trustees under the last will of Madeline E. Huling, against W. R. Hunter, Anna M. Kerr, Zula F. Hunter, and the Young Women's Christian Association of Kankakee, Ill., which is said by both parties to be the decree which was under consideration by this court in Troup v. Hunter, 300 Ill. 110, 133 N. E. 56. This decree and the findings and recitals contained therein have been treated by both parties upon this appeal as competent evidence, and as evidence proper to be considered by this court on this appeal. What the issues were in the former case is not disclosed by the evidence in this case, and we have no means of ascertaining, so far as the evidence in this case is concerned, whether or not the findings and recitals contained in the decree were material to the issues in that case. In order that a judgment may be conclusive evidence of the fact sought to be established by it, it must appear that the same fact, not only was in issue and determined in the former suit, but that it was a material fact therein. A finding of facts not necessary to uphold a former judgment does not conclude the parties. Even though a decree in express terms professes to find a particular fact, yet, if such fact was immaterial and the controversy did not turn upon it, the decree will not conclude the parties in reference to that fact. 15 R. C. L. 980.

[6] Upon the hearing of a motion for a directed verdict, the court can only consider competent evidence, and, the competency of the record in question not having been shown by the evidence in this case, we could properly reverse the judgment of the Appellate Court without considering any of the other questions discussed by the parties on this appeal, but, as the case must be remanded for a new trial and some of the same questions may again arise, we have deemed it proper to discuss them.

Assuming, as has been done by both par[3] Appellant testified that Madeline E. ties, that the judgment in question and the Huling died testate June 30, 1914; that on findings of fact and recitals therein contained July 1, 1914, appellees, who knew that they were competent evidence, and also assuming had been nominated as executors by her last that the same could be considered by the cirwill and testament, with W. I. Holcomb, came cuit court upon the motion to instruct the to appellant's office and retained him, he be- jury to find for the defendant and by this ing an attorney licensed by the Supreme court upon appeal, the question arises whethCourt of this state to act as their attorney in er or not, applying the rules above stated the matter of her estate; that thereafter ap- with reference to motions of this character, pellant prepared the petition for probate of the court erred in directing the jury to find the will, and rendered professional services the issues for appellees. Applying those rules

(146 N.E.)

to the evidence in this case, including the de- preparation of an order entered in the councree above mentioned, the evidence shows ty court on October 10, 1914, in which the that for many years prior to the death of title and possession of the homestead propMadeline E. Huling appellant had been her erty were found to be held by the executors confidential legal adviser; that he performed and trustees, by assisting in the preparation legal services and advanced moneys for her of a petition filed by the executors in the to the amount of $5,000; that she did not county court, asking leave to rent the homedesire to pay cash for the same, and, in lieu stead and assisting in the preparation of an thereof, in 1908 she executed to appellant a order authorizing them to rent the same, by deed for the homestead premises, reserving assisting in attempts by the executors to sell to herself a life estate therein, as security the premises, including the preparation by for her indebtedness; that this deed was kept appellant of the copy for an advertisement by appellant until 1913, when he returned it in the newspaper in which the premises were to her and received from her, in its stead, her offered for sale by the executors; that during note for $5,000, payable to appellant at the the period of his employment he at no time death of Mrs. Huling; that some time before made any claim to the premises, or evinced Mrs. Huling's death she gave this deed back any intention of so doing; that his employto appellant, telling him that she wanted to ment ended in 1917; that in 1919 he examindo all she could to prevent her brother and ed the proceedings in the estate and found sister, who were her only heirs, from getting that the executors had been paid $2,000 for the property; that she told him that he should their services, as provided for by the will, take the deed, and, if the will was set aside and that they had paid out $1,300 or $1,400 he should put the deed upon record and then for their bonds, and in addition thereto each deed the property to some charitable institu- had drawn out $1,000 additional for their tion that would fight them to a finish; that services; that he contended that the execushe told appellant that, in case the will was tors had sold certain real estate for less than sustained, he should keep the deed and it was worth, and he thereupon determined "watch things, and if my estate is adminis- that there was not enough money going to be tered and goes according to my wishes you left to carry out the provisions of the will can destroy it or give it to the trustees, but, and erect an old people's home, and that if in your judgment things are not going as there was no attempt, as far as he could diswould suit me, if I knew it, then I want you cover, to close up the estate; that by her will to do with it just as you think I would do, Mrs. Huling bequeathed to various charitable if I were here:" that appellant then put the institutions sums aggregating $120,000, and deed in his safe, where it remained until aft- directed the executors and trustees named in er Mrs. Huling's death; that prior to her her will to form a charitable corporation, to death she gave to appellant the sum of $2,000, be known as the "Madeline E. Huling Home to be used by him in sustaining her will and for Poor, Aged, Worthy Persons," and to pay seeing that its provisions were carried out; over to said corporation the residue of her that at the time of his employment by appel- estate, to be used by the corporation for the lees they knew that he had been acting as the maintenance of a charitable institution to be confidential legal adviser and attorney in fact located at Kankakee; that the will further of Mrs. Huling; that at the time of his em- provided that, if for any reason the scheme ployment by appellees he informed them with could not be carried out practicably, the exreference to the secret $2,000 fund, and with ecutors and trustees should select some other reference to other preparations which had charitable institution already in existence been made at his suggestion for the purpose and pay the money over to it; that on Sepof furnishing evidence in favor of the valid- tember 20, 1919, such corporation had not ity of the will in case of a will contest; that been formed, and the executors and trustees he did not at that time inform them that he did not have sufficient money and property had the deed in question in his possession; for the maintenance of such home; that on that he did not at that time intend to use September 20, 1919, Hunter recorded the warthe deed, if the will were probated and its ranty deed, dated December 9, 1908, signed provisions carried out; that he did not then, by the testatrix, conveying to himself the or at any time during his employment by ap- homestead, and simultaneously filed for recpellees, claim to have any personal interest ord a quitclaim deed dated September 19, in the deed or in the premises .described 1919, conveying the property from him to the therein, but, on the contrary, it was his inten- Young Women's Christian Association of tion that the premises described in such Kankakee, a charitable organization which deed should be administered as a part of the was then occupying the premises. estate of the deceased; that this intention on the part of appellant is evidenced by the facts that he took part in the preparation of the inventory of the estate, in which the premises described in the deed were listed as belonging to the estate, by assisting in the

The deeds from Mrs. Huling to appellant and from appellant to the Young Women's Christian Association were held invalid (Troup v. Hunter, supra), for the reason that there had not been an unconditional delivery of the deed from Mrs. Huling to appellant.

During the time of his employment by appellees, the evidence shows he rendered professional services of very great value, and that during that time he did nothing inimical to their interests.

discretion of the latter. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements which interfere in any degree with his exclusive devotion to the cause confided to him, and that he has no in

It is contended by appellees that, by reason of appellant's failure to disclose to themterest which may betray his judgment or enat the time of his employment that he had danger his fidelity, and it is his duty to disthe deed in question, and had been charged close to the prospective client all those matby the deceased with a secret trust, he is ters which he conceives may have an influbarred from receiving compensation for his ence upon his employment; but this does not services. Appellant was not employed by ap- mean that, where an attorney discloses all pellees to look out for their private interests such facts which he honestly conceives to be by the contract of employment of July 1, material to his employment, and fails to dis1914, but was employed as attorney to act in close some fact which by the court may be the matter of the probating of the will and deemed material to such employment, and as attorney for the estate, although at a later such concealment is not fraudulent, by reason date, when a tramp dog, which had been of such concealment he is barred from receivhoused by the caretaker, bit a passerby, and ing any compensation for his services, where claim was made against appellees for dam- the services rendered during the time of his ages by reason thereof, the evidence shows employment are rendered with exclusive dethat they applied to him for legal services un-votion to the cause confided to him, and to der circumstances which rendered them lia- no other interest. In the present case appelble to him for compensation, regardless of lant, at the time of his employment, was in any concealment with reference to the deed. possession of an invalid deed. There is no Section 6 of the Canon of Ethics of the Amer-evidence in the case that at that time, and ican Bar Association provides:

"It is the duty of a lawyer, at the time of retainer, to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned, given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose. The obligation to represent the client with undivided fidelity, and not to divulge his secrets or confidences, forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

[7-9] The American Bar Association is not a legislative tribunal, and its canons of ethics are not of binding obligation, and are not enforced as such by the courts, although they constitute a safe guide for professional conduct in the cases to which they apply, and an attorney may be disciplined by this court for not observing them. Ringen v. Ranes, 263 Ill. 11, 104 N. E. 1023. It is undoubtedly the duty of an attorney to disclose to his prospective client every adverse retainer and every prior retainer which may affect the

during the entire continuance of his employment, he did not consider it invalid. His supposed interest as trustee under this invalid deed was not an interest which did interfere in any degree with his exclusive devotion to the cause confided to him by appellees, which was to see that the will was probated, its provisions carried out, and the remainder of the estate devoted to the Madeline E. Huling Home for Poor, Aged, Worthy Persons; and that, if the provisions with reference to the home were not carried out, then the remainder of the estate should be devoted to some other worthy charity. He had a right to presume that that was the only interest appellees had in the employment, and that his interest and the interest of appellees coincided.

On the evidence in this case, construed, as it must be, most favorably to appellant, we cannot hold, as a matter of law, that by reason of his concealment with reference to the invalid deed, and the secret trust with reference thereto, he is barred from receiving any compensation for the professional services shown by the evidence.

The judgment will be reversed, and the cause remanded to the circuit court of Kankakee county.

Reversed and remanded.

DUNCAN, C. J., and THOMPSON, J., dissenting.

« ForrigeFortsett »