Hamilton Common Pleas.

ATTORNEYS-DISBARMENT.

[Hamilton Common Pleas, 1893.]

IN THE MATTER OF THE COMPLAINT AGAINST WM. F. CHAMBERS AND Wм. A. BOONE, ATTORNEYS.

DISBARMENT, ETC., OF ATTORNEYS.

An attorney disbarred for procuring another attorney to antedate and cause to be executed and recorded an invalid deed suspended from practice for three years, and the attorney performing such acts through misapprehension of the circumstances censured.

OUTCALT, J.

Written charges having been presented to this court against Wm. F. Chambers, an attorney at law, practicing at the bar of this court, involving the professional conduct of said Chambers in his said office of attorney and counsellor at law, this court on March 18, 1893, considering the same in joint session and being satisfied that the professional conduct of Wm. A. Boone, an attorney at law, was likewise involved, directed that J. B. Swing, Esq., and A. J. Marsh, Esq., attorneys and officers of this court, prepare and file written charges and specifications against said Chambers and against said Boone, in accordance with the statute in such cases made and provided, and to cause certified copies thereof to be served upon them, and fixed the fourth day of April following the hearing of the same.

The respondents being present in court in person and by counsel, and their answers in writing to said charges and specifications being read, testimony was heard and the cause argued by counsel and submitted to the court.

The court having carefully considered the same, and coming now to determine the cause, and to adjudge the truth of said charges, does find from the testimony of witneses, proofs and exhibits, and the admissions of the respondents made in their answers filed to said charges, that the said Wm. F. Chambers and the said Wm. A. Boone are each and severally guilty of unprofessional conduct in his said office of attorney and counselor at law, involving moral turpitude, in the manner and form charged and specified.

And coming now to pronounce judgment upon the conviction of guilt thus made, and to award and adjudge such punishment therefor as seems to the court just and proper in the premises, and the court doth adjudge and order that the said Wm. A. Boone be and he is hereby suspended from all practice in his said profession and office as attorney and counselor at law at this bar for the period of three years from the date of the entry of this judgment upon the minutes of this court.

The court believing that the misconduct of which the said Wm. F. Chambers has been found guilty was not of his own conceiving, but was

in the matter of Cambers and Boone, Attorneys.

prompted and suggested by the said Wm. A. Boone, who knew that the charge upon his books against the property of said Thiering had been fully paid and discharged, and that the deed from Fred C. Schwartz to Frank Compton, of date of January, 1883, being made and recorded by and at the instance of him, the said Boone, was an invalid cloud upon the title to said property and of no force and effect in law, and of which facts the said Chambers was ignorant and purposely unadvised of by the said Boone, the ignorance of which facts, and consequent belief in good faith on the part of said Chambers, induced the belief, that in the transaction of March 2, 1892, with said Theiring, he had been wronged by the refusal of payment of the check given for the deed delivered to the said Theiring on said day (March 21, 1893), and that his act in preparing and causing to be executed and recorded the fictitious and invalid deed and mortgage, which, though executed March 3, 1893, were antedated and made to bear the date of February 6, 1893, was the result of the heat of passion and the lack of judgment and reflection, and in the light of his conduct subsequently, in righting his own wrong and admitting his error, this court considering his brief professional life and limited knowledge of the practice of the law, but in nowise attempting to palliate the character of the offense of which we find him guilty, doth adjudge and order that the said Wm. F. Chambers be, and he is hereby censured by this court for his said misconduct in office, and it is further ordered that the said judgment of censure be entered upon the minutes of this court.

And that the said respondents pay the costs of this proceeding, including an attorney's fee of $50.00 to J. B. Swing, Esq. And it is further ordered that the foregoing be entered upon the minutes of this court as the judgment in this case.

KUMLER, J., dissenting.

There is no difference in the opinion of the court in regard to the guilt of the defendant. Indeed the facts upon which the charges and specifications are based are confessed in open court to be true. There is no escape from the conclusion announced.

Suggesting, executing, acknowledging, delivering, filing, recording, and antedating the fictitious deed and mortgage named are offenses not to be lightly overlooked or punished. I therefore take this occasion to express my dissent from the opinion of a majority to this court in respect to the amount and kind of punishment to be inflicted under the order of the court in both cases. In my opinion the punishment is not adequate to the offenses committed.

Hamilton Common Pleas.

RECEIVERS-CONTRACTS.

[Hamilton Common Pleas, 1893.]

ALBERT MCCULLOUGH V. MRS. CHARLES L. MITCHell.

1. APPOINTMENT OF RECEIVER.

Where a receiver was asked for on the ground that a certain contract be tween plaintiff and defendant had been broken by defendant, in the absence of sufficient evidence showing that the contract claimed to be broken, was made, the appointment of such receiver will be denied.

2. CONTINUATION UNDER ONE CONTRACT-PRESUMPTION.

An agreement whereby the entire season's cut of flowers is to be consigned and that consignee is to retain twenty-five per cent. of the net proceeds on account, for bulbs, is quite different from an agreement whereby the entire cut of flowers is to be consigned and that consignee shall retain the entire net proceeds on account, and furnish money to meet consignor's pay roll, etc. Therefore, the continuation of transactions under the first contract after its termination would not raise a presumption of the subsequent contract.

3. SUPPLIES FURNISHED AND MONEY ADVANCED-PRESUMPTION.

The fact that supplies were furnished and money advanced, raises a presumption of indebtedness, but no presumption of any lien, on, or interest in, any property.

MOTION FOR RECEIVER.

L. C. Black and Daniel F. Wilson, for motion; C. F. Wilby, contra.

SAYLER, J.

The proof shows that certain negotiations having been had between the parties, the plaintiff, on September 19, 1890, addressed a letter to C. L. Mitchell, as manager for defendant, in which he says: "Our understanding is this, that you, as manager of the Oakley Rose Houses, agree to place your entire cut of flowers for the coming season in our hands for sale on commission; we, on our part, undertaking to obtain the best possible price thereon, and to render you regular account sales at stated times and cash remittances therefor, receiving as compensation for such services fifteen per cent. commission; furthermore, on the above agreement and understanding, we have booked your order for quantity of bulbs herein stated, same to be charged to your general account, and no reduction to be made from your sales the first thirty days, then twentyfive per cent. of the net sales to be retained by us until said account is balanced. Furthermore, at any time you may desire supplies we will furnish them to you on the same terms, and give you best prices, quantity and quality considered. If there is any point in the above that does not entirely correspond with your recollection of the conversation, we will be pleased to have it corrected at once, so there will be no cause for a misunderstanding in the future. Our main object now is to have it plain and distinct, so as to avoid unnecessary trouble." Then follows said list of bulbs.

McCullough v. Mitchell.

On September 22, 1890, Chas. L. Mitchell, as manager, wrote to J. M. McCullough Sons, in which he says:

"Your letter of the 19th inst. came duly to hand and states, we think, fully and accurately, the agreement between us as to sale of the cut of the Oakley Rose House for the season. It is understood, of course, that you will make an effort by advertisement and otherwise to find a market for the cuts and we shall do what we can to bring our customers to you. It is also understood that the Oakley Rose House will continue to sell to its few retail customers (not florists) until such time as it may in any way interfere with your wholesale trade, but that in such case this retail trade is to be discontinued."

The evidence shows this contract for the season of 1890, which included the balance of the year 1890 and a portion of the year 1891, was carried out by both parties.

The plaintiff claims that this contract was renewed with certain changes for the season of 1891-2, and for the season of 1892-3, and that during the season of 1892-3, the defendant ceased to comply with the terms of the contract, leaving a balance of some $2,400 owing to plaintiff, and the plaintiff now asks that a receiver be appointed to take charge of the Oakley Rose Houses and the cut of plants and flowers growing therein and supplies furnished by plaintiff, to hold and manage the business, etc.

This matter has been heretofore passed on in this court and was taken to the circuit court on error. Mitchell v. McCullough, 4 Circ. Dec., 471. In passing on the matter in the circuit court Judge Swing said: "If there had been a breach of the contract as set out for the season of 1890-1, under the allegations of the petition, we think the court, under the law, would have been justified in the appointment of a receiver, for, under the law, as we deem it to be, the case is eminently one for a receiver, for in no other way could the rights of McCullough have been protected."

This determines the law of the case in the common pleas court, the plaintiff would have had a right to a receiver had there been a breach of the contract of 1890-1 by the defendant, and it follows that if the same contract was entered into for the season of 1892-3, the plaintiff will be entitled to a receiver if it be shown that there is a breach of it by the defendant. The circuit court held that the evidence did not show that the same contract was made for the season of 1892-3, and did not show what the contract for the season in fact was, and therefore held that the plaintiff was not entitled to a receiver.

The evidence shows that the defendant did, during the season of 1892-3, cease to place the cut of flowers in the hands of the plaintiff for sale, and that there is an indebtedness from defendant to plaintiff for supplies and moneys advanced to the defendant.

45 S. & C. P. Vol. 10.

Hamilton Common Pleas.

Clearly, therefore, the only matter now for me to determine is whether the same contract, or a contract with the same terms, or a contract with terms as effective, was in fact entered into for the season of 1891-2 and 1892-3.

The evidence in the affidavit of the plaintiff is to the effect that in April, 1891, the defendant, through her manager, verbally agreed with the plaintiff to renew the said contract of 1890-1, on the same terms and conditions, for the season of 1891-2, but that said contract was enlarged so that plaintiff was to furnish all of the seeds, plants, supplies of coal, oil, fuel, etc., needed in said Oakley Rose Houses, and to furnish money necessary to pay the pay-roll of the employees, and was to have the entire cut of plants and flowers for the season on the terms, to-wit, that after deducting a commission of fifteen per cent. for his services he was to retain the entire net proceeds to reimburse him for his advancements; that this contract was carried out for the years of 1891-2, and that in January, 1892, the defendant, through her manager, applied to the plaintiff to renew said contract for the season of 1892-3, and it was thereupon verbally agreed that said contract should be renewed.

The contract claimed to have been made for 1891-2, can hardly be called a renewal of the contract of 1890-1. By the contract of 1890-1, the entire cut of flowers was to be placed in the hands of plaintiff, the plaintiff to furnish bulbs and supplies (explained in affidavit of plaintiff, as supplies to the Oakley Rose Houses, for the purpose of stocking said houses and growing a cut of flowers); plaintiff to have fifteen per cent. as commission, and twenty-five per cent. of the net sales to be retained by plaintiff on account, balance to be remitted in cash.

By the claimed contract of 1891-2, the plaintiff was to furnish all the seeds, plants and supplies, coal, oil, fuel, etc., also money to pay the payroll; the plaintiff to have the entire cut or plants and flowers; plaintiff to have fifteen per cent. as commission and to retain the entire net proceeds to reimburse him.

The elements of the new contract are different from the old contract, and could not be established by a renewal of the old contract.

It is clear that after the expiration of the contract of 1890-1, the parties did continue to deal with each other; the plaintiff did furnish supplies and moneys to defendant, and the defendant did place in his hands the cut of flowers, and at all events, some plants for sale. The orders attached as exhibits make this manifest, and the plaintiff says that a contract as claimed by him, being a renewal of the old contract, with the enlargements, was entered into. No writing is claimed, and the language of the agreement is not given, only the substance of the result: the conclusion is stated, and the plaintiff says that in fact the supplies and money were furnished and advanced under such contract, and that said defendant applied to the plaintiff previous to the expiration of said sea