plaintiffs were to recover a per centum of that value, and that hence plaintiffs in an action for their percentage might show that the value received in exchange exceeded the value defendant gave for the property. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 332, 333; Dec. Dig. 8 144.*] 2. ATTORNEY AND CLIENT (§ 144*)-CONTRACT FOR COMPENSATION-PLEADING AND PROOF. Plaintiffs were not required to plead and prove fraud on defendant's part in order to be permitted to show that the company which apparently purchased defendant's stock paid no part or only a part of the cash difference given in the exchange, and that such sum or some part of it was paid by the bank; defendant being liable if he received the excess whether he made the exchange with the company or with the bank, and his intent being immaterial. [Ed. Note. For other cases, see Attorney and Client, Dec. Dig. 8 144.*] 3. ATTORNEY AND CLIENT (§ 144*)-CONTRACT FOR COMPENSATION. In determining whether defendant received a pecuniary consideration over and above the value of the stock he gave up in exchange, the market value of the stock was to be taken as its actual value, though defendant believed that the actual value was in excess of the market value; such excess being the subject-matter of the action against the bank. [Ed. Note.-For other cases, see Attorney and Client, Dec. Dig. § 144.*] 4. ESTOPPEL (§ 90*)-ACQUIESCENCE. Plaintiffs being entitled to a reasonable time to inquire into the facts of the settlement, that they failed for several days to return a check sent them by defendant with notice that he had settled the action against the bank did not estop them from maintaining the action to recover the amount actually due them. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 248; Dec. Dig. § 90.*] 5. EVIDENCE (§ 448*)-EXTRANEOUS EVIDENCE TO EXPLAIN CONTRACT. The contract not being ambiguous, evidence as to what defendant said when it was amended was inadmissible. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 448.*] Department 1. Appeal from Superior Court, Walla Walla County; Thos. H. Brents, Judge. Action by Oscar Cain and another against Miles C. Moore. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial awarded. Dunphy, Evans & Garrecht, for appellants. T. P. & C. C. Gose, for respondent. ployment was reduced to writing, and is in the form of a letter from the attorneys, addressed to the respondent; the material parts thereof being as follows: "In regard to your suit against the First National Bank and others we agree to prosecute the case upon the following terms: In case the matter proceeds to trial and we recover nothing, we will charge you $200.00. On any sum recovered less than $5,000.00 we will charge you 20 per cent. and 5 per cent. on any additional amount. In case of a compromise we will charge you 10 per cent. of the amount paid you. In case of settlement by sale or exchange of stock not to exceed $200." After the contract had been entered into, an action was begun by the respondent through the appellants as his counsel, whereupon one W. P. Winans, a director of the First National Bank, approached the respondent with a view to settling the action without the necessity of a trial. After several interviews he asked the respondent to make a proposition for settlement, and thereupon the respondent offered to exchange his 35 shares of stock in the First National Bank, at a valuation of $900 per share, for 33% shares of stock in the Baker-Boyer National Bank of Walla Walla at a valuation of $500 per share, and take the difference in money. This proposition was accepted, and shortly thereafter through Mr. Winans and another representative of the bank an exchange of the stock was made, the respondent assigning his shares of stock to the Kirkman Investment Company, of which Mr. Winans was president, and receiving therefrom the shares of stock in the Baker-Boyer National Bank, and $14,833.34 in the form of a certified check drawn by the Kirkman Investment Company on the First National Bank. At the same time the re spondent gave to the bank's representatives the following receipt: "Received of the Kirkman Investment Company the sum of thirtyone thousand five hundred ($31,500.00) dollars in full payment for thirty-five shares of stock in the First National Bank of Walla Walla, and in full settlement of all claims and demands, against the said First National Bank of Walla Walla against any and all of its funds and accounts and against any and all of its officers and employés." Thereafter the respondent directed the appellants to dismiss the suit against the bank, at the same time sending them his check for $200. The appellants dismissed the action as directed, and kept the check until they learned the terms and conditions on which the action had been settled when they returned the check to the respondent, and demanded the sum of $1.400, claiming the amount as due them under that clause of the contract relating to a compromise of the action against the bank. This demand being refused, they began the present action to recover the sum demanded. FULLERTON, J. In August, 1908, the respondent was the owner of 35 shares of the capital stock of the First National Bank of Walla Walla. At that time he conceived the idea that the bank had made large earnings which had not been properly accounted for, and that, upon a proper accounting, a large sum would be found to be due him in virtue of his ownership of the shares of stock mentioned. He was desirous of bringing an action to procure such an accounting, and to that end employed the appellants as attorneys for that purpose. The contract of emFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes On the trial, the foregoing facts appearing, the appellants sought to show that the exchange of stock made by the respondent with the representatives of the bank was in reality a compromise of his suit against the bank; that the market value of the stock he received in exchange for the stock he held in the First National Bank was practically of the same value as the stock exchanged for it; and that the sum paid in cash, although nominally paid by the Kirkman Investment Company, was actually paid by the First National Bank, and was paid by it in settlement of the action brought against it, and for no other consideration. It having appeared in the record that the contract as originally submitted did not contain the clause with reference to a sale and exchange of stock, and that this clause was added at the respondent's request, he stating at the time his reason for making the request, the appellants further offered to show the reason given by the respondent for desiring the contract changed. The court denied the several offers of proof, and ruled as a matter of law that the transaction between the respondent and the representatives of the bank was an exchange and sale of stock within the meaning of the last clause of the contract, and that the appellants were entitled to only the sum named therein as attorney's fees. The appellants then rested their case, whereupon the court sustained a challenge to the sufficiency of the evidence, and directed judgment for the respondent. The court in making the several rulings above recited seems to have been of the opinion that it was not competent for the appellants to question the nature of the transaction between the respondent and the persons with whom he settled his controversy with the bank; that they were obligated to accept those proceedings at what they purported to be upon their face, and were not permitted to inquire into their real nature. This in terpretation of the contract between the parties we can hardly think is tenable. The contract itself when read as a whole is not obscure. Its obvious meaning is that the respondent was to pay nothing in excess of $200 as attorney's fees in case he obtained no pecuniary advantage by reason of the action brought against the bank; that if the action proceeded to trial and nothing was recovered, or if the respondent should sell or exchange his shares of stock in the bank and receive no pecuniary advantage thereby, then $200 was to be the gross sum he was required to pay the appellants as attorney's fees. On the other hand, if anything was recovered after trying out the action, or if the respondent compromised the case and received a pecuniary consideration over and above the market value of the property he gave up in the compromise, the appellants were to recover a per centum of that value. Within this view of the contract it was competent for the appellants to show, if they could, that stock in the sale and exchange was in excess of the value he gave for the property. It would be some proof of this fact to show the market values of the stock exchanged, that the Kirkman Investment Company, whoapparently purchased the stock, paid no part or only a part of the cash difference given in the exchange, and that this sum or some part of it was paid by the First National Bank in compromise of the suit the respond. ent had instituted against it. The appellants were not required to plead and prove fraud on the part of the respondent in order to be permitted to show these matters. The intent of the respondent is not material. If the facts sought to be proven exist, the appellants are entitled to recover, no matter what the respondent's purpose may have been. He is liable to the appellants for the per centum. agreed to be paid, if he in fact received in the sale or exchange made with the representatives of the bank a sum in excess of the value of the stock exchanged, and this whether he made the exchange with the Kirkman Investment Company or with the First National Bank. We think, also, that in determining whether the respondent received a pecuniary consideration over and above the value of the stock he gave up in the exchange the market value of the stock must be taken as its actual value. It is true the respondent believed. that there were large sums earned by the bank which had been retained by it, and that the actual value of the stock was in excess of its apparent or market value, and consequently believed that the actual value of his stock was greatly in excess of its market value. But this excess was the subject-matter of the action against the bank. It was this he brought the action to recover, and it was a per centum of this sum he agreed to pay as attorney's fees in case of a recovery, and he cannot escape his agreement by showing that he gave the stock in exchange at a value based upon the existence of the undivided earnings. The appellants are not estopped from maintaining this action by the fact that they failed to return the check for several days after it had been sent them with notice that the respondent had settled the action against the bank. If they were obliged to return it at all, they had a reasonable time in which to inquire into the facts of the settlement, and it is not in evidence here that there was any abuse of this right. The evidence offered tending to show what was said by the respondent when the written contract was amended was properly rejected. The contract is not ambiguous, and extraneous evidence is not required to explain its meaning. For the errors noticed, the judgment appealed from is reversed, and a new trial awarded. RUDKIN, C. J., and CHADWICK, GOSE,. MEMORANDUM DECISIONS. E. Ellinwood and Herndon & Norris, for appellants. E. S. Clark, for the Territory. PER CURIAM. Upon the question of the affirmance or reversal by this court of the judgment of the district court in this action, the members of this court qualified to participate in the determination of the appeal are equally divided in opinion, and the judgment of the district court must therefore stand affirmed. any opinion as to the merits of the case would be but the expression of the views of a minority of the court, none will be given. As CONSOLIDATED PEOPLE'S DITCH CO. v. CENTRAL CALIFORNIA WATER & IRRIGATION CO. et al. (Civ. 421.) (Court of Appeal. Third District, California. July 9, 1909.) Appeal from Superior Court, Tulare County; W. B. Wallace, Judge. Action by the Consolidated People's Ditch Company against the Central California Water & Irrigation Company, also known as the Central California Water Company, and others. From the judgment, one of the parties appeals. Affirmed as modified. Bradley & Farnsworth and O. E. Larkins, for appellant. Hannah & Miller, for respondent. PER CURIAM. Pursuant to stipulation, it is ordered: That the portion of the judgment in said action which reads as follows: "First. It is ordered, adjudged, and decreed that the following lands of defendant J. W. C. Pogue are riparian to the Kaweah river, to wit: That part of the west half of section thirty-five, in township seventeen south, range twenty-seven east of the Mount Diablo base and meridian, lying east and south of the mid-channel of the Kaweah river, also the northeast quarter, and the west half of the northwest quarter of the south- the same is hereby changed and modified, so east quarter of said section thirty-five, and that that said portion of said judgment shall be and portion of section three, in township eighteen read as follows: "First. It is ordered, adjudg south, range twenty-seven east, of the Mounted, and decreed that as between said plaintiff, Diablo base and meridian, lying east and south the Consolidated People's Ditch Company, a of the mid-channel of said Kaweah river-and corporation, and said defendants Central Calithat six cubic feet per second, and no more, fornia Water & Irrigation Company, a corporaof the water flowing in said Kaweah river is tion (also known as and called Central Calia reasonable quantity of water for the irriga-fornia Water Company, a corporation), and the tion of said riparian land and for domestic pur- Mercantile Trust Company of San Francisco, poses and the watering of live stock thereon by a corporation, that said defendants have the said defendant J. W. C. Pogue; and it is or- prior and superior right to take and divert from dered, adjudged, and decreed that, as between the Kaweah river by means of the Pogue, Walplaintiff and said defendant J. W. C. Pogue, said lace & Crocker ditch, or Pogue's lower ditch, defendant J. W. C. Pogue has, as a riparian or both of said ditches together, but not otherowner and as against plaintiff, the prior and su- wise, six cubic feet of water per second of the perior right to take and divert from the Ka- water flowing in said Kaweah river, and no weah river by means of the Pogue. Wallace & more, and that no more than six cubic feet of Crocker ditch, or Pogue's lower ditch, six cubic water per second of the water flowing in said feet of water per second of the water flowing Kaweah river shall be taken or diverted from in said Kaweah river, and no more, until said said Kaweah river by said defendants Central plaintiff is first supplied at the head of its ditch, California Water & Irrigation Company, a corthe Consolidated People's ditch, with three hun- poration (also known as and called Central Calidred cubic feet of water per second of the water fornia Water Company, a corporation), and the flowing in said Kaweah river during the months Mercantile Trust Company of San Francisco, a of January, February, March, April, May, June, corporation, by means of said Pogue, Wallace & July, November, and December of each year, Crocker ditch, or Pogue's lower ditch, or both and with forty cubic feet of water per second of of said ditches together, until said plaintiff is the water flowing in said Kaweah river during first supplied at all times, at the head of its the months of August, September, and October ditch, the Consolidated People's Ditch, with of each year, and that said defendant J. W. C. three hundred cubic feet of water per second Pogue, in the use of said six cubic feet of water of the water flowing in said Kaweah river, and per second of the waters of said Kaweah river, that, after said defendants have so taken and has the right to use the same on said ripa- diverted said six cubic feet of water per second rian lands and on lands away from and not of the waters of said Kaweah river. said plainriparian to said Kaweah river, and that after tiff has the prior and superior right as against said defendant J. W. C. Pogue is first supplied, said defendants, and each of them, and their at the head of said Pogue. Wallace & Crocker and each of their successors and assigns, to take ditch, or at the head of said Pogue's lower ditch, and divert from said Kaweah river the next with said six cubic feet of water per second of three hundred cubic feet of water per second the water flowing in said Kaweah river, then of the water flowing in said Kaweah river at said plaintiff is entitled at the head of its said the head of plaintiff's said ditch; and it is ditch to take and divert from said Kaweah further ordered, adjudged, and decreed that river three hundred cubic feet of water per plaintiff have and is granted the injunction of second of the water flowing in said Kaweah the superior court of the county of Tulare, state river during the months of January, February, of California, perpetually enjoining and reMarch, April, May, June, July, November, and straining the defendants Central California WaDecember of each year, and to so take and di- ter & Irrigation Company, a corporation (also vert from said Kaweah river forty cubic feet known as and called Central California Water of water per second of the water flowing in said Company, a corporation). and the Mercantile Kaweah river during the months of August, Trust Company of San Francisco, a corporaSeptember, and October of each year, before tion, and each of them, and their and each of said defendant J. W. C. Pogue is entitled to take their agents, officers, servants, employés, tenor divert any more water from said Kaweah ants, successors, and assigns, and all others river by means of said Pogue, Wallace & Crock- acting under them or either of them, or under er ditch, or said Pogue's lower ditch, or other- their or either of their authority, or in aid wise; and it is further ordered, adjudged, and of them or either of them, or for or on behalf of decreed that plaintiff have the injunction of this them or either of them, from taking or diverting court perpetually enjoining and restraining the any water from said Kaweah river, except as said defendant J. W. C. Pogue, his agents, serv- aforesaid, or from in any manner interfering ants, employés, tenants, and all others acting with the free and natural flow of the water of under him or his authority, or in aid of or said Kaweah river, except as aforesaid." And on behalf of him. from taking or diverting by the court below is directed to change and means of said Pogue, Wallace & Crocker ditch, modify the judgment as aforesaid, and, as so or said Pogue's lower ditch, or otherwise, more changed and modified, the judgment is affirmed. than six cubic feet of water per second of the water flowing in said Kaweah river, or thereafter in any manner interfering with the free and natural flow of the water of said Kaweah river, until said plaintiff is first supplied at the head of its ditch with three hundred cubic feet of water per second of the water flowing injunction by the State, on the relation of E. L. said Kaweah river during the months of January, February, March, April, May, June, July, November, and December of each year, and forty cubic feet of water per second of the water flowing in said Kaweah river during the months of August, September, and October of each year; and it is further ordered, adjudged, and decreed that, as between said plaintiff and said defendant J. W. C. Pogue, said plaintiff do have and recover judgment against said defendant J. W. C. Pogue one-half of the costs and disbursements incurred by said plaintiff in said action, which one-half of said costs and disbursements amounts to the sum of $ which said plain STATE ex rel. TUSTIN, Co. Atty., v. CITY OF GRAINFIELD. (Supreme Court of Kansas. July 3, 1909.) Error from District Court, Gove County: J. C. Ruppenthal, Judge. In Tustin, County Attorney of Gove County, against the City of Grainfield. Judgment for defendant, and relator brings error. Affirmed. F. S. Jackson, Atty. Gen.. E. L. Tustin, and A. D. Gilkeson, for plaintiff in error. R. V. Chambers and Burch & Litowich, for defendant in error. PER CURIAM. A temporary injunction was obtained against the officers of the city of Grainfield to enjoin them from contracting debts, issuing scrip, and paying outstanding scrip. There were involved 28 claims against the city upon which warrants had been issued. Some of them were challenged because the claims were not ver In re BROWN et al. (Supreme Court of Oklahoma. July 13, 1909.) Original proceedings for the disbarment of H. H. Brown and R. F. Turner. Proceedings dismissed. Benedict Elder, for the Bar Examining Commission. W. T. Brown, for respondent Brown. ordinances appropriating money to pay the scrip | due from said Lindsey to said firm of Brown & had not been passed, and funds had not been Turner, which had been reduced to judgment set apart for their payment, and that warrants and was unpaid, the exact amount of which was had been issued for claims that were illegal. The and is unknown, owing to the loss of the rectrial court examined the claims and warrants in ords in that case; that on the next day after detail. One of them was perpetually enjoined, said postponement said Brown dismissed said because no fund for its payment had been pro- criminal prosecution against said Lindsey and vided. The temporary injunction was dissolved Chieves, concerning which the report of the as to 3 of the claims, and the remaining 24 were committee says: "The case was dismissed by found to be just claims against the city; but an order of the court entered after the conbecause they had not been properly presented tinuance had been granted to the defendant. A the injunction was continued in force against scrutiny of the record convinces us that respondthem, the court holding that these claims might ent Turner had nothing to do with the dismissal be paid in case that they were thereafter prop- of the case, and it is conclusive to our minds erly verified, presented, and regularly allowed. that the dismissal was due to a lack of witnesses, The claims and the questions arising on them and at the request of members of the association appear to have been carefully examined, and the H. H. Brown consulted before the dismissal was rights of the public, as well as the claimants, entered." At the time said cause was dismissed justly determined. It is an injunction proceed- said Turner was in the courtroom, and, learning, in which equitable considerations outweighing that Lindsey was not present, went out and mere technical objections. In the state in which communicated at once with one Westheimer, and we find the evidence, it cannot be said that a with him made arrangements to have said Lindwrong result was reached. Judgment affirmed. sey execute a note and mortgage for $250, payable to Westheimer, for the benefit of Turner, and through Westheimer led Lindsey to believe that, if he would thus pay him (Turner) said $250, the amount claimed as due on said fee, he would have said prosecution against him dismissed, which was done, but which said committee find was never paid; that said Brown knew nothing of said deal, and that said conduct PER CURIAM. This is a proceeding in dis- collect an old fee, was reprehensible; that "we on the part of Turner, in that it went too far to barment, instituted in this court on March 1, have carefully investigated this case, and have 1909. against H. H. Brown and R. F. Turner, studied the record closely, but have been unable members of the bar of this state, charging in to find sufficient to convince our minds that resubstance that, while partners in the practice of law at Ardmore. they were employed by the spondent secured the sum of $250 for the purAnti-Horse Thief Association to assist in the pose of securing a dismissal of the case against prosecution of Ben Lindsey and Lon Chieves, evidence to be insufficient to sustain the charges, Ben Lindsey"-and concludes: "Deeming the charged with robbery, and while so employed ac-1 cepted the sum of $250 from Ben Lindsey to | As there is no doubt of the correctness of said we recommend that the charges be dismissed.' procure a dismissal of the case against him. report, which is unexcepted to, we feel conLater this court appointed a committee from the strained to approve the same and order a disBar Examining Commission to investigate said missal of this proceeding. But before doing so charge, who took testimony and filed their rewe desire to concur with the report of the Comport herein. The evidence, in substance, dis- mission in the opinion that the conduct of recloses that in October, 1905, respondents, while spondent Turner in the premises was reprehenpartners in the practice of law at Ardmore, were sible in a high degree. Such practices are, moreemployed by said association to assist in the over, calculated to bring the profession into disprosecution of Ben Lindsey and Lon Chieves repute, and such that, if persisted in, will soon for robbery, and accepted a retainer of $100; bring him to the lowest rung of professional that thereafter, pending said prosecution, said standing. We are not unmindful of the fact partnership was dissolved, and in a division of that the firm had obtained judgment against cases between the partners said prosecution fell Lindsey for the amount of this fee, and that the to said Brown, who from that time on looked same was unpaid; that the amount was a goodafter the case in person and appeared therein ly one, honestly earned, and perhaps much needbefore the United States Commissioner and in ed; but that in no measure justified or excusthe courts at various times when said cause was ed said respondent in insinuating to Lindsey that called for trial, and fully discharged his duty if he would pay it the prosecution against him under said retainer; that after the admission would be dismissed, especially as respondent of the state into the Union the cause was chang- knew at the time that said prosecution had. ed to Marietta, and was continued until the fall unknown to Lindsey, already been dismissed, and of 1908, at which time said Brown appeared at the case at all times beyond his control. Marietta and announced ready for trial; that methods may prosper for a season, but will indefendant thereupon asked a postponement there- evitably lead to professional obscurity and obof until the next day, in order to secure the livion. And this is our reprimand, recommendattendance of his witnesses, and the cause was ed by the Commission, and with it this proceedpassed accordingly; that there was an old feeing is dismissed. All the Justices concur. Such END OF CASES IN VOL. 103. |