During the time of his employment by appel- , discretion of the latter. When a client emlees, the evidence shows he rendered profes- ploys an attorney, he has a right to presume, sional services of very great value, and that if the latter be silent on the point, that he during that time he did nothing inimical to has no engagements which interfere in any their interests.

degree with his exclusive devotion to the It is contended by appellees that, by rea cause confided to him, and that he has no inson of appellant's failure to disclose to them terest 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 receiv. housed 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:

during the entire continuance of his employ. "It is the duty of a lawyer, at the time of ment, he did not consider it invalid. His supretainer, to disclose to the client all the cir- posed interest as trustee under this invalid cumstances of his relations to the parties, and deed was not an interest which did interany interest in or connection with the contro- fere in any degree with his exclusive devoversy which might influence the client in the tion to the cause confided to him by appelselection of counsel. It is unprofessional to lees, which was to see that the will was prorepresent conflicting interests, except by ex- bated, its provisions carried out, and the repress consent of all concerned, given after a mainder of the estate devoted to the Madeline full disclosure of the facts. Within the meaning E. Huling Home for Poor, Aged, Worthy Perof this canon, a lawyer represents conflicting interests when in behalf of one client it is his sons; and that, if the provisions with referduty to contend for that which duty to another ence to the home were not carried out, then client requires him to oppose. The obligation the remainder of the estate should be devoted to represent the client with undivided fidelity, to some other worthy charity. He had a and not to divulge his secrets or confidences, right to presume that that was the only inforbids also the subsequent acceptance of re- terest appellees had in the employment, and tainers or employment from others in matters that his interest and the interest of appellees adversely affecting any interest of the client coincided. with respect to which confidence has been re

On the evidence in this case, construed, as posed.”

it must be, most favorably to appellant, we

cannot hold, as a matter of law, that by rea[7-9] The American Bar Association is not son of his concealment with reference to the a legislative tribunal, and its canons of ethics invalid deed, and the secret trust with refare not of binding obligation, and are not erence thereto, he is barred from receiving enforced as such by the courts, although they any compensation for the professional serv. constitute a safe guide for professional con- ices shown by the evidence. duct in the cases to which they apply, and an

The judgment will be reversed, and the attorney may be disciplined by this court for cause remanded to the circuit court of Kannot observing them. Ringen v. Ranes, 263 kakee county. Ill. 11, 104 N. E. 1023. It is undoubtedly the

Reversed and remanded. duty of an attorney to disclose to his prospective client every adverse retainer and DUNCAN, C. J., and THOMPSON, J., disevery prior retainer which may affect the senting.

[ocr errors][ocr errors]
[ocr errors]
[merged small][ocr errors][merged small]


(146 N.E.)
(315 III, 328)

thereto; that for more than 7 years the GAGE V. VILLAGE OF WILMETTE et al. cottages have been furnished with water (No. 16406.)

by the village, on complainant's application

therefor, through water mains in front of (Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 11, 1925.)

the cottages connected with water mains of

the village; that the village put in service 1. Pleading Co 34(4) Allegations construed taps connecting the cottages with the water most strongly against pleader.

mains and has collected bills for the water On demurrer every allegation of bill is con. supplied, for repair of the pipes leading to strued most strongly against pleader.

the cottages and for water meters; that 2. Injunction 59(2)-Consumer held not en- there is no other source of water supply to titled to enjoin village from discontinuing said cottages; that complainant has a consupply of water under executory contract, not tract with the village, either express or stating duration.

implied, to furnish water for use in the Consumer held not entitled to injunction cottages, and that unless it shall continue restraining village from discontinuing water to do so as heretofore, complainant will sufsupply where contract was executory and fixed fer irreparable damage; that for a number no definite time for its duration, such con- of years the village has maintained and opertract being terminable at will of either party.

ated a plant for the purpose of distributing 3. Injunction w126 - Adjacent land owners and selling water within and without the presumed not to have possession of man-hole village; that the water is obtained from and shutoff on public street.

the city of Evanston under a contract with Where consumer in bill to enjoin village said city; that the village operates and from discontinuing water supply alleged that maintains a public utility, and has a fixed he was owner of manhole and shutoff locat- rate of payment for water sold in the village ed in a public street, without alleging posses- and another rate for water sold and distribsion entitling him to maintain action of tres. uted without its limits; that for many pass, presumption arises that he did not have

year such possession.

the village has supplied customers

with water who were not residents of any Appeal from Second Branch Appellate municipality, and has thereby assumed the Court, First District, on Appeal from Su- position of a public utility for the sale of perior Court, Cook County ; Denis E. Sulli- water to customers outside of its corporate van, Judge.

limits; that the supply of water furnished Bill for injunction by John S. Gage against by the city of Evanston to the village of

Wilmette is ample and sufficient to enable the Village of Wilmette and others. From the village to continue furnishing water to a decree of the Appellate Court, affirming a decree of dismissal, complainant appeals. complainant, and that the city of Evanston

has not refused to furnish the same. The Affirmed.

amended bill then sets up, by way of suppleFrank N. Reed, of Chicago, for appellant. ment, that, at the time of filing the bill, Frederic B. Crossley, of Chicago (Elmer complainant was being supplied with water M. Leesman and Raymond C. Schnell, both as required, but that the officers of the vilof Chicago, of counsel), for appellees. lage were threatening to turn off the water,

and since filing the original bill the vilHEARD, J. Appellant filed in the superior lage had cut off the supply of water; that court of Cook county his bill for an injunc- the manhole containing the shutoff is in tion against the village of Wilmette and Sheridan road, about 100 feet north of the certain of its officers. An answer was filed village limits; that the manhole and shutthereto, and thereafter complainant took off belong to the owners of property facing leave to amend the bill and a demurrer was Sheridan road; that, without the knowlfiled to the bill as amended.' The demurrer edge and consent of complainant, the village, was sustained and complainant elected to through its employees, has caused the manstand by his amended bill, which was by hole to be filled up. The bill prays that the the court dismissed for want of equity and village may be restrained from turning off an appeal perfected to the Appellate Court or discontinuing the water supply to the for the First District, where the decree premises in question, and, that if the agents of the superior court was affirmed. A cer- of the village have turned off the water, tificate of importance having been granted they be ordered by a mandatory injunction by the Appellate Court, the case is now be- to turn it on or have the supply continued fore us upon appeal.

to said premises. The bill as amended alleges that complain- [1, 2] In the briefs and arguments many ant for many years has been a resident of questions have been discussed, including the the village of Wilmette and the owner of right of the village of Wilmette, under the a cottage on Sheridan road, about 500 feet conditions set up in the bill, to furnish wanorth of the limits of the village, and that ter to persons outside of its limits, which we he has charge of another cottage adjacent do not deem necessary to consider. While it

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[merged small][ocr errors][ocr errors][ocr errors]

is alleged in the bill that there was a contract | struction and damages payable to remonstrant, between the village and the complainant as to be paid by taxpayers, and instruction to to furnish water, the bill does not con- disregard statement relative to payment by tastain the terms of the contract nor any al. payers, and court's additional statement that legation as to the time during which the con

it was duty of board of commissioners to de

termine who should pay cost or damage, if tract was to continue in force. The bill merely describes it as being “either express

any, held not erroneous. or implied.". Upon demurrer every allega Appeal from Circuit Court, Fountain Countion of the bill is to be taken most strong. ty; Jere West, Judge. ly against the pleader. Where no definite time is fixed during which an executory others for establishment of public highway.

Proceedings by H. Knapper Bilsland and contract shall continue in force it is termi- From the judgment rendered, remonstrant, nable at the will of either party. Joliet Bot David S. Ferguson, appeals. Affirmed. tling Co. v. Joliet Brewing Co., 254 Ill. 215, 98 N. E. 263; Davis v. Fidelity Fire Ins. Co.,

Livengood & Livengood, of Covington, for 208 Ill. 375, 70 N. E. 359; Orr v. Ward, 73 appellant. Ill. 318. Under the allegations of the bill

W. N. White, of Covington, and B. F. Wattherefore the village had a right to termi- son, of Indianapolis, for appellees. nate the contract at any time. [3] The manhole and shutoff were in a

GEMMILL, J. Appellees filed a petition public street, and, although complainant als with the auditor of Fountain county, adleges that he is the owner thereof, there is dressed to the board of commissioners, pray. no allegation in the bill to show that com. ing for the location and establishment of a plainant had such possession thereof as to public highway in Troy township in said entitle him either to maintain an action of county. Viewers were appointed who retrespass or a bill to prevent a threatened ported in favor of the public utility of the trespass, but, on the contrary, the presump- proposed highway. The appellant and other tion arising from the facts stated in the freeholders remonstrated against same as bill is that he did not have such possession. not being of public utility, and reviewers

The amended bill of complaint failed to were appointed who also reported favorably show on its face that complainant was en

on that proposition. The appellant, David S. titled to the relief sought. The superior Ferguson, and his wife, Sarah E. Ferguson, court properly sustained the demurrer to the then filed separate remonstrances for dambill.

ages. Reviewers were appointed .who asDecree affirmed.

sessed and reported damages in favor of each of said remonstrators. The reports of the reviewers as to the public utility of the proposed highway and as to damages in favor

of the remonstrators were approved, the FERGUSON v. BILSLAND et al.

damages were ordered paid by the county, (No. 24174.)

and the highway was ordered established. (Supreme Court of Indiana. Jan. 28, 1925.) The remonstrators then appealed to the

Fountain circuit court. Before the case was 1. Appeal and error ww928 (3)—Where evi. tried in the circuit court, the remonstrator,

dence not in transcript or brief, instructions Sarah E. Ferguson, died intestate, learing given presumed pertinent, and those not given not applicable.

as her only heir at law the other remonstra

tor, David S. Ferguson, who became the own. Where evidence is not in transcript or recited in appellant's brief, it must be presumed er of the real estate which she owned, and on that instructions given correctly stated law which damages had been assessed, and he pertinent to the evidence, and that those re

was substituted as remonstrator in the place fused, if they stated law, were not applicable. / of said decedent. The cause was tried by

a jury, which found that the proposed high2. Appeal and error Om928(3)-Where evi. dence not in record, instructions correct un

way would be of public utility and against der any evidence admissible under issues will the remonstrator on that proposition, but not be held erroneous.

found for the remonstrator, the appellant Where evidence is not in record, instruc- | herein, on his remonstrance for damages, and tions given will not be held erroneous, if correct assessed his damages in the sum of $200. under any evidence admissible under issues in Judgment was rendered on the verdict.

Appellant filed a motion for a new trial 3. Highways Cw58(8)-Sustaining objection to containing 11 causes for same, which motion

was overruled. argument of remonstrant's counsel and state.

The ruling on said motion ment of court as to payment of damages held has been assigned as error. not erroneous.

In appellant's brief on page 30 the followIn proceedings to establish highway, sus

ing statement is made: taining objection to argument of remonstrant's “We are free to concede there is no reversiattorney that jury should consider cost of con- ' ble error in the record in this cause, aside from

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


[ocr errors]

(146 N.E.) the instructions given to the jury, including the statement, in addition thereto, in the presperemptory instruction given during the argu ence of the jury, that it is the duty of the board ment of counsel for appellant."

of commissioners of the county to determine

who shall pay the cost or damages, if there And in accordance therewith all causes shall be any to pay, and not this jury.” stated in the motion for a new trial, except

The court, in our opinion, did not err in the seventh, eighth, ninth, and eleventh, are not discussed by appellant, and may be re- sustaining the objection of petitioners' atgarded as waived.

torney to the said statement of remonstraThe seventh, eighth, and ninth reasons for tor's attorney in argument to the jury, for

the reason that said statement was erronea new trial are as follows:

ous. It could not be presumed that the dam"(7) The court erred in giving to the jury of ages, if any, would have to be paid by the its own motion, each of the instructions, separately and severally numbered from 1 to 10, county. And the court did not err in in

structing or directing the jury to disregard inclusive.

"(8) The court erred in giving to the jury at the objectionable part of the statement and the request of the petitioners instructions num in stating the law as to the determination of bered from 1 to 22, save and except instruc- payment of damages, if any. tions 4, 5, 12, and 16, and that the court erred The court did not err in overruling the in giving each of the instructions separately motion for a new trial. The judgment is afand severally.

firmed. “(9) The court erred in refusing to give to the jury each of the instructions requested by the remonstrator numbered 2 and 15."

PARKER V. STATE. (No. 24563.) [1, 2] The evidence is not in the transcript, and there is no recital of same in appellant's (Supreme Court of Indiana. Jan. 30, 1925.) brief, so it will be presumed that the instruc- 1. Indictment and Information Om 110(31)tions given correctly stated the law as per Affidavit in words of statute charging sale, tinent to the evidence, and those refused, etc., held sufficient as against general objecif they stated the law, were not applicable tion. to the evidence. De Hart v. Board, etc. Affidavit in language of statute that defend(1896) 143 Ind. 363, 367, 41 N. E. 825; Lyons ant did "unlawfully sell, barter, exchange, give v. Souder (1914) 56 Ind. App. 443, 105 N. E. away, furnish, and otherwise dispose of intoxi511; Gary, etc., R. Co. v. Hacker (1915) 58 cating liquor" to persons named, held sufficient Ind. App. 618, 108 N. E. 756; Traction Co. v.

as against general objection that facts alleged

are not sufficient to state any public offense. Hall (1910) 173 Ind. 292, 295, 90 N. E. 312; Goshen Milling Co. v. Bailey (1917) 186 Ind. 2. Intoxicating liquors Ow236(11)-Evidence 377, 383, 114 N. E. 869. As the evidence is held to support conviction of selling. not in the record, none of the instructions, · Evidence that witnesses went into defendwhich were given, will be held erroneous ant's home and asked for drink, that he brought if correct under any evidence admissible un them each about spoonful of "something that der the issues in the cause. Mankin v. Penn- did not taste like water” for which they paid. sylvania Company (1903) 160 Ind. 447, 454, 67 breath as they emerged, held sufficient to sup

and that policeman smelled whisky, on their N. E. 229; Indianapolis Traction, etc., Co. v. Ripley (1911) 175 Ind. 103, 108, 93 N. E port conviction of selling liquor. 546; Oleske v, Piotrowski (1919) 71 Ind. App.

Appeal from Circuit Court, Delaware 136, 141, 124 N. E. 399 ; Jones v. Beasley County; C. W. Dearth, Judge. (1921) 191 Ind. 209, 213, 131 N. E. 225. Aft James Parker was convicted of selling iner careful examination of the instructions toxicating liquor, and he appeals. Affirmed. given, which are objected to by appellant,

[ocr errors]

Walterhouse & Miller, of Muncie, for apWe believe each of said instructions is cor

pellant. rect under evidence admissible under the is

U. S. Lesh, Atty. Gen. (Cronk & Wilde, of

Indianapolis, of counsel), for the State. (3] The eleventh reason for a new trial is as follows:

EWBANK, J. (1) Appellant was tried on "(11) The court erred in sustaining the ob

the charge that he did “unlawfully sell, barjection of the petitioners' attorney to the fol- ter, exchange, give away, furnish, and otherlowing statement made to the jury in argument wise dispose of intoxicating liquor to” two by the attorney for the remonstrator, to wit, persons named. The jury found him guilty, it is your duty to regard the cost of the con and from a judgment of conviction he apstruction of this proposed highway, the dam- pealed. The sufficiency of the affidavit was ages to be paid the remonstrant, all to be paid challenged by a motion to quash, and by a by the taxpayers of Fountain county, Ind., and instructing or directing the jury to disregard motion in arrest of judgment, the specific obthat part of the statement, all to be paid by jection urged being that it did not state what the taxpayers of Fountain county, Ind.; and price was paid for the liquor nor what was that the court erred by making the voluntary given in exchange for it, nor state the facts

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


which constituted the alleged giving away | amount due his divorced wife for the supor other disposition charged. We need not port of their minor child in accordance with decide whether or not each and all of the a judgment granting a divorce to Vera E. offenses forbidden by the statute were suffi- Burgin, his former wife, and he appeals. ciently charged, as the motions presented Affirmed. only the general objection that the facts alleged were not sufficient to constitute any

Dodson & Scifres and Roy W. Adney, all public offense at all, and the charge in the of Lebanon, for app at. language of the statute was sufficient as to

E. C. Gullion, of Lebanon, for appellee. some of the alleged offenses, at least. Lennard v. State, 191 Ind. 371, 132 N. E. 677. EWBANK, J. [1, 2] This is an appeal

[2] The only causes for which a new trial from a judgment that appellant be commitwas asked challenged the sufficiency of the ted to jail for contempt of court until he evidence to sustain the verdict finding appel- should fully pay up the amount due his dilant guilty as charged. There was evidence vorced wife for the support of their minor that the two persons to whom the intoxicat- child under an order of court made at the ing liquor was alleged to have been sold, time she was granted the divorce. The origibartered, given, furnished, and otherwise nal order was that he pay $15 per week, and disposed of went down an alley and entered the judgment appealed from was entered the home of defendant in Muncie from the after hearing evidence to the effect that the rear and asked him for something to drink; order had never been set aside or modified; that appellant brought each of them about a that no petition for its modification had ever spoonful in a little glass of something that been presented; that appellant had paid did not taste like water, which each drank; nothing at all for more than two weeks past; that one of them paid defendant 35 cents a had paid only $30 in five weeks past; had drink for it, and they left the house within been irregular in making payments, once 10 minutes after having entered it; that cer- paying nothing from April 20th until August tain policemen had seen them go down the 11th, and again paying nothing from Novemalley and enter defendant's house, and stop-ber 7th until January 5th; that his pay. ped them within 50 feet of it when they came ments had averaged only $41 per month; out, and they then had the smell of whisky that he was $465 in arrears; that he was a on their breath. This evidence was sufficient traveling salesman, receiving a salary of to support the inference which the jury drew $2,200 and expenses when away from home; that defendant had sold and furnished in that appellant had married his present wife toxicating liquor to those two men, as twelve days after the judgment was charged.

tered granting a divorce to his former wife The judgment is affirmed.

and making this order for the support of the child; and that appellant's father had recently died, leaving a will under which appellant's wife was a beneficiary, and that

from his estate she had received an automoBURGIN v. BURGIN. (No, 24401.)

bile which appellant had used in making (Supreme Court of Indiana. Jan. 29, 1925.) part of his points since then, though neither 1. Divorce. 311-Evidence supports guilt of the size of the estate nor of her legacy was

contempt for noncompliance with order to shown. It was also in evidence that appelsupport child.

lant had been in living in South Dakota and Evidence held to support judgment that de

was back in Indiana by reason of having fendant had willfully failed and refused to pay

come 1,100 miles to testify as a witness at weekly sum to divorced wife for support of the trial of a claim against his father's eschild and was guilty of contempt.

tate. It was also shown that the child was 2. Divorce Emo312—Testimony to inability to in a hospital for $40 per month and her food,

attending school, and that its mother worked pay no ground for disturbing finding of con

until the last month, when her salary was tempt.

raised to $50. That defendant testified to inability to pay to support of child in custody of divorced wife

This evidence, if believed and given credis no ground for overthrowing finding of guilt it, sufficiently supports the inference drawn of contempt for willful failure and refusal to by the trial court that appellant had willpay as ordered, under rule that judgment can fully failed and refused to obey the ornot be overthrown on appeal on weight of con der for the support of his child, and was flicting evidence.

guilty of contempt of court in so doing. And

the fact that appellant testified that nearly Appeal from Circuit Court, Boone County; all of his salary was consumed in paying his Frank E. Hutchinson, Judge.

own "personal expenses" and keeping up Proceeding adjudging Alonzo C. Burgin in "headquarters" at his home town, and that contempt of court for failure to pay the l he bought no more clothing than was "abse

m. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


« ForrigeFortsett »