Warrick v. Warrick, 3 Atk. 294, being one of | was made to a stenographer in the office of the cases mentioned in brief of plaintiff in defendant, and immediately assigned to the error, but Justice Bradley does not adopt the company, and that all notices of the due date language of Lord Hardwicke but uses the of interest and principal were forwarded by language and opinion of Lord Eldon, who did the defendant to the guardian and not to the not approve of it. borrower, and all interest on, the $3,500 In Mountford v. Scott, 1 Turn. & R. 274, mortgage and the two notes representing twoLord Eldon is quoted as saying: "I should be unwilling to go so far as to say that, if an attorney has knowledge of a transaction in the morning, he shall be held in a court of equity to have forgotten it in the evening; it must in all cases depend upon the circumstances." Justice Bradley, continuing, says: "The distinction taken by Lord Hardwicke has since been entirely overruled by the Court of Exchequer Chamber in the case of Dresser v. Norwood, 17 Common Bench, N. S. 466. So that in England the doctrine now seems to be established, that if the agent, at the time of effecting a purchase, has knowledge of any prior lien, trust, or fraud, affecting the property, no matter when he acquired such knowledge, his principal is affected thereby." The rule laid down in 40 Cyc. 2373, relating to privileged communications, is as follows: "The rule does not extend to communications respecting proposed infractions of the law, and so there is no privilege as to communications made in contemplation of the future commission of a crime, or perpetration of a fraud in which, or in avoiding the consequences of which, the client asks the advice or assistance of the attorney. But communications made in respect to an alleged crime or fraud made after the act or transaction is finished are privileged." See State v. Richards, 97 Wash. 587. 167 Pac. 47; Chicago Lmbr. Co. v. Cox, 94 Kan, 563, 147 Pac. 67; Ex parte McDonough, 170 Cal. 230, 149 Pac. 566, L. R. A. 1916C, 593, Ann. Cas. 1916E, 327. In Hartness v. Brown, 21 Wash. 655, 59 Pac. 491, the Supreme Court of Washington says: "The rule, however, is well settled that communications made to counsel in contemplation of fraud or a criminal act are not privileged." We have examined all the authorities cited in the brief of the plaintiff in error with consummate care and we can find no authority sustaining the defendant's position when leveled with the facts in this case. The knowledge of Rennie was acquired, not in a prior transaction in which he acted as attorney for the guardian, but was acquired in the particular transaction in which he was not consulted as an attorney, but as agent of the defendant, and considering this in connection with the fact that the loan was made to Yoder, who never employed Rennie as an attorney, and that the defendant charged Yoder $700 commission or 20 per cent. of the total amount borrowed, and that this mortgage thirds of the principal on the commission mortgage were paid by the guardian, and usually paid with her check, we cannot say the defendant had no knowledge of the actual facts, and certainly the evidence is such as to impute the knowledge of Rennie to the defendant by which they are bound, and we can find no error in the court below so holding. This is The second and last proposition presented in defendant's brief relates to the rule requiring full faith and credit to be given the judgment of the county court in confirming the guardian's sales and the protection of innocent purchasers, and cites cases. a salutary rule and very necessary for the protection of innocent purchasers, and any other rule would result in great hardships, and would make it impossible to realize anything approximating a fair price for land at a guardian's sale, but having held that the defendant was not an innocent purchaser, the rule does not apply. The only question, therefore, left for this court to consider, is the cross-assignment of error of the plaintiff, who excepts to the finding of the court that the guardian dissipated $2,000 in ventures of her own and spent $1,486 for the benefit of the ward, and renders judgment for the defendant for $1,486 with interest and decreeing said sum to be a first mortgage lien upon the lands of the plaintiff, which sum with interest now approximates $2,500. [3] The plaintiff testified that he never received any part of the money obtained from the defendant, and the guardian's report sworn to on October 11, 1912, being less than two months after the loan was secured, shows that all the money so received by Yoder, or the guardian, was expended prior to the last-mentioned date, and three and onehalf years before the minor attained his majority. The mortgages herein complained of, if not void, were at least voidable by reason of the fraud practiced upon the minor, knowledge of which fraud is imputed to the defendant by reason of the agency of Rennie, and the plaintiff having used due diligence in filing this action within one year after attaining his majority, wherein he seeks to have the mortgages canceled, this assignment of error is brought within the rule laid down by this court in a long line of opinions. In Bridges v. Rea, 64 Okl. 116, 166 Pac. 416, wherein lands were sold during minority through the probate court, and it developed that it was not a sale but an exchange of lands, this court said: (221 P.) "Having been procured by fraud on the and mortgages executed by Yoder on the court, this deed was void," lands of the plaintiff in favor of the American Investment Company, and the mortgage -and with reference to returning the pro- executed by Yoder on plaintiff's lands in faceeds of the sale, the court said: vor of R. L. Duke, and quieting title to the said lands in the plaintiff as against the defendant. CUTCHALL v. CUTCHALL. “Assuming that plaintiff had no right to sue to rescind the sale without restoring the consideration, her offer so to do in her petition, wherein she 'tenders back to the said defendant, W. C. Rea, the drug stock taken in exchange by her guardian for her lands,' was all that the law required of her. But the deed being void, she was not required to return the consideration as a condition precedent to relief in equity; but aside from this, the absence of a showing that, at the time she brought || 1. Divorce the suit or the case was tried, she had in her possession any of the consideration received for the land, was sufficient reason for not requiring her so to do." (No. 14548.) (Supreme Court of Oklahoma. Dec. 18, 1923.) (Syllabus by the Court.) 197—Plaintiff held liable for defendant's attorneys' fees, notwithstanding contract between defendant and attorneys. The defendant in a divorce suit contracted to pay to her attorneys 25 per cent. of all moneys or property or other thing of value re In Stevens v. Elliott et al., 30 Okl. 41, 118 covered for her in said suit, in the event a diPac. 407, this court said: "From the conclusions reached, the deeds of March 9, 1905, should be canceled and set aside. But should this be done without imposing terms upon the plaintiff? We think not, providing that it should hereafter appear that she, on the date when she arrived at her majority, had in her possession or under her control the money, or any part thereof, received by her from Vaughn, or any property received in exchange therefor. Such money or property as she had on said date she should account for. If, however, she had spent or disposed of the money so received, or its proceeds, then the relief accorded by the court [below] should not be denied her. This is the settled rule of the courts in almost all jurisdictions. 22 Cyc. 615, and cases cited; Colbert v. Alfrey, 168 Fed. 231, 93 C. C. A. 517; Blakemore v. Johnson, 24 Okl. 544, 103 Pac. 554." After a careful examination of all the evidence, we cannot agree with the findings of the court "that none of the parties to the negotiations * * were guilty of any 'corrupt' intention to defraud anyone." The adjective "corrupt" might well have been omitted from the finding, for if there was an "intent to defraud," the intent, of itself, shows the corruption, and the agent of the defendant investment company having knowledge of the facts acquired in the particular transaction and at the time of taking the application for the loan, and this knowledge being imputed to his principal, a fraud was perpetrated upon the court, and the plaintiff, and for the reasons herein stated the judgment, of the court below should be reversed, in so far as it imposes upon the plaintiff, as a condition precedent to the cancellation of the mortgages, that he repay the defendant the sum of $1,486 with interest at the rate of 6 per cent. per annum from the 11th day of July, 1912, and the cause should be remanded to the district court of Garvin county, with instructions to enter judgment for the plaintiff, John J. Goodson, Jr., canceling the notes vision of the property was recovered, and that in the event such division was not recovered said attorneys were not to receive any compensation other than that allowed by the court. Pending the suit a property settlement was entered into between the plaintiff and defendant, and afterwards approved by the court. Such property settlement provided that the plaintiff should pay into court for the use of defendant's attorneys such sum as the court should deem adequate and proper. Thereafter the court, upon a hearing, found that the services rendered by the defendant's attorneys were of the value of $1,250. Held, that the plaintiff is liable for said attorneys' fees, and that the original contract between the defendant and said attorneys, provided for a contingent fee,. was immaterial; the recovery not being based upon the contingent provision of said contract. 2. Divorce —227(2)—$1,250 to attorneys for defendant in divorce held not excessive. Record examined, and held, that under the evidence the allowance of $1,250 for attorneys' fees is not excessive. Commissioners' Opinion, Division No. 4. Appeal from District Court, Tulsa County; Albert C. Hunt, Judge. Action by I. R. Cutchall against Lillian Cutchall. Judgment for plaintiff for divorce, and for defendant for $1,250 for attorneys' fees. Plaintiff appeals from the order allowing attorneys' fees. Affirmed. H. B. Martin and R. A. Reynolds, both of Tulsa, for plaintiff in error. Lewis & Wortman and McGuire & Marshall, all of Tulsa, for defendant in error. DICKSON, C. On the 27th day of January, 1923, in the district court of Tulsa county, the court rendered its decree: (1) Granting the plaintiff a divorce; (2) approving and confirming a property settlement between the plaintiff and defendant; and (3) directing that the plaintiff should pay the costs, and pay into court, for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes benefit of defendant's counsel as compensa-, ices rendered, to be chargeable against the tion for attorneys' fees, the sum of $1,250. plaintiff on the contract he made." The plaintiff has appealed from that portion of the decree requiring the payment of the item of $1,250 for attorneys' fees. It appears from the record that the plaintiff instituted this suit on the 12th day of November, 1922; that the parties were married in 1892, but had lived separate and apart for some 10 years before the filing of this suit; that the defendant resided in Toledo, Ohio, and the plaintiff in Tulsa, Okl.; that the plaintiff was possessed of property of the approximate value of $75,000. At the time the suit was filed, the plaintiff filed an affidavit to secure service by publication, reciting that the defendant was a nonresident of the state of Oklahoma, and living in the city of Denver in the state of Colorado. On November 28, 1922, the defendant's attorneys Messrs. Lewis & Wortman wrote the defendant a letter advising her that this suit had been filed and tendering their services as her attorneys. There was other correspondence between the defendant and Messrs. Lewis & Wortman, resulting in the contract between the defendant and said attorneys, whereby said defendant agreed to pay the said attorneys 25 per cent. of all moneys or property or other thing of value recovered or obtained for her, by or through said suit or compromise or release or other settlement. The contract further provided that said attorneys were in no event to pay any costs and were not to receive any compensation other than that allowed by the court, except in the event of the recovery of a division of the property. It is contended by the plaintiff that this contract was void and against public policy, and for that reason the court erred in allowing an attorneys' fee to be taxed against the plaintiff. We are of the opinion that the question of the legality of this provision of the contract is not before the court. By article VIII of the property settlement, which upon the plaintiff's request was approved by the court, it is provided: « "It is further agreed that in addition to the payment herein before provided for, the plaintiff will pay into court for the use of defendant's attorneys in said cause as their compensation for fees whatever sum the court shall deem adequate and proper for such purpose." On the trial of the case it was held that the contract between the defendant and her attorneys so far as the contingent fee provision was concerned was not binding upon the plaintiff; the court saying: The only thing before the court now is as to what would be a reasonable fee for the serv In Re Sylvester's Estate, 195 Iowa, 1329, 192 N. W. 442, cited by the plaintiff, it is held: "A contract between attorneys and their client to obtain a divorce for her and to settle property rights, providing for a contingent fee held illegal as contrary to public policy." But in that cause it is further held that, notwithstanding the contract was illegal and could not be enforced, still the attorneys would have a right to recover on quantum meruit. The case of State v. Martin, 45 Wash. 76, 87 Pac. 1054, is not in point. In that case the defendant had procured employment for himself as an attorney by falsely and fraudulently representing a state of facts to his client which were untrue. In this case it is conceded that Messrs. Lewis & Wortman faithfully represented the defendant, and it appears that by reason of their efforts in her behalf she secured a settlement by which she is to be paid $150 a month during the balance of her life. [1] The plaintiff, having agreed to the property settlement and expressly undertook to pay such attorneys' fees as the court should allow, is in no position to assert that there is no liability against him. Hyatt v. Burlington, C. R. & N. R. Co., 68 Iowa, 662, 27 N. W. 815. The provision in the contract between the defendant and her attorneys, to the effect that in the event no property division was secured by the suit they should be paid such fee as the court might allow, was valid. And it is well settled that a valid covenant in a contract based upon a legal consideration is enforceable, though a separate covenant for the same consideration is void as being against public policy. Culver v. Diamond, 64 Okl. 271, 167 Pac. 223. [2] It is further contended the allowance in this case of $1,250 is excessive. Several witnesses testified as to the value of the services; some of them placing the value at $3,000 and one witness placing it at $1,500. These witnesses were all members of the Tulsa Bar. Inasmuch as the allowance made by the court was $250 less than the lowest estimate of any witness of either plaintiff or defendant, we think it should not be dis turbed. It is therefore recommended that the judgment appealed from be affirmed. STEPHENSON and SHACKELFORD, CC, concur, (221 P.) NICHOLS-WILLIAMS ZINC CO. v. SEWELL (Supreme Court of Oklahoma. Oct. 30, 1923. (Syllabus by the Court.) 1. Appeal and error giving of instructions numbered 4, 5, 7, and 8, and in the failure of the court to give certain instructions asked by the defendant. It appears from the record in this cause that the plaintiff had made a contract to drill a large hole to put in a Pomona pump. The plaintiff drilled one hole 233 feet deep, which 882(12)—Invited error could not be used for that purpose, but was used by the defendant for another purpose. He then moved his drill and put down another hole to a depth of 209 feet, at which point, according to plaintiff's theory, he was prevented by defendant from drilling deeper, and was also, at the time of completion of such drilling, advised by defendant that the hole would not be accepted unless plaintiff would guarantee the working of the Pomona pump as a condition precedent to paying him for such hole when completed. It appears that there is conflicting testimony on the question of whether such requirement or condition was a part of the original con Where plaintiff sued on a contract to recover compensation for certain drilling done on a mining leasehold, and where defendant requested the court to instruct the jury that plaintiff was entitled to recover only the reasonable value of the use of the hole or holes drilled, and the court's instruction substantially stated this contention, and no exception is saved, held, that a recovery on said theory must be sustained, although the recovery was not based on the contract price, for the reason that the defendant invited the court to submit this theory to the jury. 2. Record held to sustain verdict. Held, further, record examined, and the evi- tract. The court, in instructions numbered dence is sufficient to sustain the verdict. Commissioners' Opinion, Division No. 2. Appeal from District Court, Ottawa County; S. C. Fullerton, Judge. 4 and 5, fairly submitted this contention and the theory of both parties thereon to the jury. a [1, 2] It is evident that the jury allowed compensation for only one of said holes, toSuit by the Sewell Well Company, James gether with the indebtedness due for mateR. Sewell, proprietor, against the Nichols-rial and interest thereon. It seems to us that the verdict was justified under instrucWilliams Zine Company, a corporation, Judgment for plaintiff, and defendant ap- which no exception was taken. This intion No. 6, page 65 of the case-made, to peals. Affirmed. A. C. Wallace, of Miami, for plaintiff in error. F. W. Church, of Miami, for defendant in error. LYONS, C. The Sewell Well Company, James R. Sewell, proprietor, as plaintiff, sued the Nichols-Williams Zinc Company, a corporation, as defendant, in the court below, to recover the contract price due for certain drilling done by the plaintiff on defendant's lease. Plaintiff further claims in his petition an indebtedness against the defendant in the sum of $124 for a drill stem and bit, $72 for sixteen feet of casing, $16.50 for a lumber platform, making a total of $212.50, less a credit of $40. Plaintiff claimed that the sum of $2,692.50 was due and the jury brought in a verdict for the sum of $1,527.50. Judgment was rendered on the verdict. A motion for new trial was overruled, and this appeal is brought to reverse the judgment. In this opinion the parties will be referred to as in the court below. The defendant (in the court below) alleges that the court erred in reopening the case after both sides had announced the closing of their respective cases. This was in the discretion of the court, and no abuse of discretion appears. The defendant further alleges error in the struction reads as follows: "You are instructed that, under the evidence in this case, the plaintiff under no circumstanc es would be entitled to recover the contract price for the drilling of the first hole drilled; but, if you believe from the fair weight and preponderance of the evidence in the case that after the same was drilled that, it being insuffithe defendant prevented the plaintiff from plugcient for the purpose for which it was drilled, ging it, and thereafter made use of it for another purpose in connection with the operation of its mine, that then and in that event the plaintiff would be entitled to recover for the reasonable value of the drill hole to the defendant for the purpose for which it was made use of by the defendant." It is true that this instruction authorizes a recovery under the quantum valebat or quantum meruit, rather than under the con tract price. This was not error, The defendant requested the following instruction: "You are instructed that the most the plaintiff is entitled to recover in this case is the rea sonable value of the use of the hole or holes, drilled to the defendant, provided that you find the defendant used said holes." We are therefore not called upon to con sider any error alleged as to the proper measure of recovery, since the defendant waived any objection on that point by re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes questing the court to give the foregoing instruction. There is evidence to support the verdict, and there is no error in the instructions of the court. The case is therefore affirmed. It is our opinion that the appeal should be dismissed, and it is so ordered. JOHNSON, C. J., and McNEILL, NICH. OLSON, and MASON, JJ., concur. KEMP et al. v. MAYER. (No. 14582.) (Supreme Court of Oklahoma. Dec. 18, 1923.) (Syllabus by the Court.) Appeal and error 565, 638-Case-made not showing a filing in court below is a nullity; appeal dismissed where case-made does not show filing in court below. A case-made filed in this court, which does not show that it has been filed in the office of the clerk of the trial court, is a nullity; and, where such a case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed, FREEMAN v. SULLIVAN et al. (No. 11430.) (Supreme Court of Oklahoma. Dec. 18, 1923.) (Syllabus by the Court.) 1. Compromise and settlement 8(1)—Vol. untary settlement enforced if fair, though different result would have been reached by court. Voluntary settlement of differences between parties in respect to their rights, where all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights, and there is no fraud, misrepresentations, concealments, or other misleading incidents, must stand and be enforced, although the settlement made by the parties in their agreement might not be that which the court would have decreed to be, had the con Appeal from District Court, Atoka Coun- troversy been brought before it for decision. ty; J. H. Linebaugh, Judge. Action between Mattie Kemp and others and Paul Mayer. From judgment rendered, the former appeal. Appeal dismissed. 2. Contracts 99 (3)—What proof of fraud necessary to defeat action on written instru. ment stated. In this jurisdiction, where fraud is alleged in the procuring of a written instrument, the W. H. Twine, of Muskogee, for plaintiffs in proof must sustain the allegations by a pre error. J. G. Ralls, of Atoka, or defendant in er ror. COCHRAN, J. Final judgment was rendered in this case on February 7, 1923, from which plaintiff in error appealed to this court by petition in error and case-made. Defendant in error files his motion to dismiss upon the ground that the pretended case-made does not show it has been filed in the office of the clerk of the trial court, and that, the statutory period allowed by law having expired in which to bring appeals since the rendition of the judgment or final order appealed from, the case-made cannot be withdrawn for correction. The case-made does not show that it has been filed in the office of the clerk of the trial court, and the statutory six months in which to appeal has expired. In Banks v. Watson, 40 Okl. 450, 139 Pac. 306, the court said: "A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and wbere such a case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed." The case-made is certified to by the clerk as a transcript, but no errors are assigned, which are determinable upon transcript. No response has been filed. ponderance of the evidence so great as to overcome all opposing evidence and repel all opposing presumptions of good faith. 3. Contracts 266(1)-Complete restoration must be made on rescission. A party claiming the rescission of a contract must restore, or offer to restore, everything of value which he has received under said contract from the other party. 4. Compromise and settlement 23(3)-Settlement and deeds executed thereunder held not to have been obtained by fraud. Record examined, and held the finding of the trial court that the contract of settlement and the deeds were not obtained by fraud is not clearly against the weight of the evidence. Appeal from District Court, Kay County; J. W. Bird, Judge. Action by Clinton D. Freeman against Sam K. Sullivan and others, wherein, upon plaintiff's death, Ella J. Freeman was substituted as administrator of his estate. Judgment for defendants, and plaintiff appeals. Affirmed. G. A. Chappell, T. J. Sargent, and A. M. Lambright, all of Newkirk, and W. M. Bowles, of Perry, for plaintiff in error. Geo. S. Ramsey, of Muskogee, Sam K. Sullivan, of Newkirk, and Felix Duvall, of Ponca City, for defendants in error. MCNEILL, J. The material facts in this case are substantially as follows: In May, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |