Dunn v. Record

Peters, J.

The amendment was allowable. It is argued that the amended count is upon a judgment. It is not. It is a count for money due to the plaintiff on account, and a judgment is merely referred to as the source from which the money sued for was derived.

The first question under the motion is, whether the assignment from the plaintiff to the defendant was valid or not. The plantiff denies that it was valid, because such a kind of claim is not legally assignable. McGlinchy v. Hall, 58 Maine, 152. The defendant contends that the assignment, as between the parties, would be effectual, after the money was collected upon the claim assigned. But aside from mere technicality, and upon the broader ground of justice and equity, we are very clear that this assignment cannot be upheld. The law is very watchful of the rights of a client, as between him and his attorney. It distrusts purchases by the one of the other. It requires an attorney to be satisfied with compensation, without seeking to obtain speculative bargains for his services. An attorney is not made incapable of purchasing property of his client, which is the subject of litigation. But he can take no advantage whatever from his confidential relation. He must impart to his client all the knowledge he has about the matter. Judge Story, (in Eq. Jurisprudence) says, (citing earlier authorities) that the burden is upon the purchaser, and not upon the client, *20 to establish the perfect fairness, adequacy, and equity of the transaction. Lord Brougham expresses it in this way: “in a word, standing in the relation he does to the other party, the proof lies upon him to show that he has placed himself in the position of a stranger; that he has cut off, as it were, the connection which bound him to the party giving or contracting; and that nothing has happened which might not have happened, had no such connection subsisted.” In Gibson v. Jeyes, 6 Vesey, 267, Lord Eldon says: “if the attorney will mix with the character of attorney that of vendor, he shall, if the propriety of the transaction comes in question, manifest that he has given his client all that reasonable advice against himself that he would have given him against a third person.” Tested by these rules, this assignment cannot for a moment stand. The parties stood upon an unequal footing. One is a learned, the other an ignorant man. The one could calculate the chances of success in the then pending suit, and (according to his impression) already had a favorable inkling about it, which he did not disclose; while the client was all in darkness about it. The consideration was an inadequate one, whether it was wise or not to pay it. The defendant did not act upon the assignment as equitably conclusive, but, according to his account of their transactions, paid money to the plaintiff afterwards. From • this, as well as from the well known honorable character of the defendant, we have no doubt that he never intended to use the assignment as a finality between the plaintiff and himself, but uses it as a protection, as far as he can, against what he regards as an unfair and ungrateful attempt of the plaintiff to take from him a larger share of the proceeds of the suit than he is entitled to have.

But we are satisfied that the consideration paid for the assignment should be allowed to the defendant as money advanced. And we are satisfied that he did advance it. His own oath, corroborated by the writing itself, controls the other evidence, upon this point. The plaintiff’s denial lacks frankness. Even if the defendant did not communicate to Mr. Bolster, in direct words, the fact .that he had paid the plaintiff $300 for the demand, still, he relied *21 upon the assignment as valid, which was tantamount to it. While Mr. Bolster was seeking to get statements from the defendant, it is evident that the defendant was not, under the circumstances, disposed freely to make them. Under such circumstances, it was an easy thing for honorable gentlemen to misunderstand each other.

Then should the defendant be allowed the $183, which he claims to have paid ? Whatever our belief and predilection about it may be, a jury could not be regarded as in error, by believing that the evidence, upon these items, preponderated the other way. The burden is upon the defendant to prove them. He has no receipt, or charge upon book account, or any thing but his oath to support a charge denied by the oath of the other side. His loss of these sums may be imputable only to his own neglect to take the proper evidence that he paid them. What the minor item was, paid for a tax, does not appear.

The sum recovered against the railroad company was $2,083.94, as of June 5, 1871. Deducting Haskell’s charges and the $300, and reckoning an interest account, and it will appear that the jury allowed (as near as may be) the sum of one hundred and fifty dollars for the defendant’s professional services. While if the matter was left to us, we might allow more than that sum for all the defendant’s risks and services, still we cannot regard the result arrived at by the jury as one that should be superseded. It must be borne in mind, that the whole costs of counsel in that suit was a little short of $600. It is not perceived that it was necessary to have two counsellors in the case; at all events, at an expense so extraordinary. The case itself, although important, was yet a simple one. It required no extensive preparation. It was tried in less time than a day. The plaintiff was the only witness for himself, outside of the medical witnesses, and they were produced in court by the other side. It would not be strange, if the jury in this case regarded the defendant responsible for some degree of laches in the management of the other suit, for the expenses consequent upon it. Exceptions and motion overruled.

Appleton, O. J., Dickerson, Bakkows and Virgin, JJ., concurred.