no bona fide defense either in a written answer, duly verified, or by proof, in the absence of written pleadings, showing that the money is held by him upon a bona fide claim that he is entitled to the same for his fee, or that he is entitled to hold the same in payment or as a lien for legal services rendered his client, or some other claim of set-off. The statute provides that the motion shall be heard and determined without written pleadings and judgment given according to law and rules of equity. Kirby's Digest, § 4485. But this does not mean that written pleadings may not be filed, and the court cannot proceed to hear the matter simply upon the notice given upon oral motion for a summary judgment if the attorney appears and files an answer, duly verified, which shows upon its face that he has a meritorious ground of defense. This is true for the reason that the statute authorizing the summary judgment authorizes the court, upon entering a summary judgment, to further deal with the attorney as the court may deem just under the provisions of the act. The statute seems to contemplate that if the attorney, upon notice, confesses the facts set up in the motion and makes no bona fide defense thereto or denial thereof the court, on rendering a summary judgment, may treat such facts as the basis of formal charges for suspending an attorney from the practice, and may order proceedings to be instituted against him for that purpose. But if such proceedings to disbar were instituted the attorney could defend against them and set up any bona fide defense he might have and demand a jury trial on the issues of fact raised by him. See Wernimont v. State ex rel. Little Rock Bar Ass'n, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156; Nichols v. Little, 112 Ark. 213, 165 S. W. 301. * * * * In Nichols v. Little, supra, we said: "The practice in such cases is defined in the case of Wernimont v. State ex rel. Little Rock Bar Association, 101 Ark. 210 [142 S. W. 194, Ann. Cas. 1913D, 1156]. where it was said: "The proceedings for the disbarment of attorneys are not formal. The prosecution thereof may be conducted in the name of the state by its prosecuting officer, * or the court may require a member of the bar to present and prosecute the charges. * After due and proper notice has been given to the defendant of the charges preferred against him, the court has the power to proceed with the trial of the matter according to the rules of practice adopted by it, not contrary to any procedure prescribed by statute.' In that case it was held that the attorney was entitled to a trial by a jury, although the judgment in that case was affirmed, notwithstanding a trial by jury had been refused; but this was so because the court found that under the undisputed evidence in the case a verdict should have there been directed, even though the trial had been before a jury. But in the present case the evidence is not undisputed, and appellant would be entitled to a trial by jury. He cannot be said to have waived his right because he was not entitled to demand a jury upon the hearing of the motion for the summary judgment." In Nichols v. Little, supra, we affirmed the judgment rendered by the court on the mo tion for summary judgment, notwithstanding the attorney filed a response thereto which presented an issue of fact that entitled him to a trial by jury, but in that case no objection was urged to the jurisdiction of the court to render summary judgment. The parties submitted to the court's jurisdiction and proceeded to a trial of the issue of fact on the motion for a summary judgment and the response thereto and the evidence adduced on that issue, and on appeal no objection was raised to the jurisdiction of the court to hear the cause and to render a judgment on the motion for summary judgment and the response thereto. Our attention was not called to this feature. We did not discuss or decide the question as to whether or not the court has jurisdiction to render summary judgment on a motion under the statute in a case where the attorney sets up in his answer, duly verified, facts which, if true, would constitute a complete defense to the cause of action set up in the motion. In other words, the question we now have under consideration was not raised by the parties in that case. The attorney in that case, as before stated, did not question the jurisdiction of the court to render judgment on the motion and answer, but only challenged the jurisdiction of the court to suspend him from the practice of law without proceeding ac cording to the requirements of the statute in such cases which entitled him to a trial by a jury on the issue as to disbarment. Now, in Wernimont v. State ex rel. Little Rock Bar Association, supra, it is held that an attorney is entitled to a trial by jury on the issue of disbarment where the court, in rendering the summary judgment under the statute, orders disbarment proceedings to be instituted against him. The statute authorizing summary judgments on motion of the client against his attorney also prescribes that when the court shall render summary judgment against the attorney for the amount of money received by him the attorney shall be further dealt with as the court may deem just, etc. And in Nichols v. Little, supra, it was held that an attorney was not entitled to demand a jury upon the hearing of a motion for a summary judgment. [3] It follows as a necessary corollary to these holdings that the court has no jurisdiction to render a summary judgment on motion against an attorney in any case where the attorney in his duly verified response to the notice and motion sets up issues of fact which are only proper for a jury to determine and which, if found to be true, would constitute a meritorious and perfect defense to the cause of action alleged in the motion. Attorneys are not entitled to demand a trial by jury upon the hearing of motions for summary judgments for the reason that the court has no jurisdiction to entertain such motions in causes where the attorney, in his verified response, raises controverted issues of fact on the merits of such motion. In Windsor v. Brown, 15 R. I. 182, 9 Atl. Į in the decisions of other courts. This view 135, 2 Am. St. Rep. 892, the court said: "When an officer of the court withholds funds unconscionably, or to an amount clearly above any legal claim, the court, not undertaking to settle the exact sum that may be due, but to enforce good faith and fair dealing, will require its officer to pay so much as is beyond dispute." And in Peirce v. Palmer, 31 R. I. 432, 444, 77 Atl. 201, 207 (Ann. Cas. 1912B, 181), after quoting the above, the court says: "In no case does it appear that the court has exercised this jurisdiction except as to matters about which there was no reasonable dispute. * If it is beyond reasonable question that there has been misconduct on the part of the attorney in retaining the money, the court will promptly make an order for its payment. But, alike in all cases, for the client to be given this extraordinary relief it must be clear that there has been an injustice done to him. In all cases the client has relief in the ordinary tribunals for the determination of legal controversies, and when his right to have a summary order can be reasonably questioned he must be referred to those ordinary remedies, whatever be the nature of the controversy." In 23 Cyc. p. 769, it is said: "But such a judgment cannot be given where the pleadings of defendant set up a substantial and issuable defense." of the statute completely nullifies the remedy which the lawmakers have undertaken to give, for it is easy enough for an attorney who is so recreant to his trust as to fail or refuse to pay over money collected to interpose a specious defense for the purpose of defeating the summary statutory remedy. The New York Court of Appeals, speaking on this subject in the case of Bowling Green Savings Bank v. Todd, 52 N. Y. 489, said: "The law is not guilty of the absurdity of holding that, after a client has spent years in collecting through his attorney a lawful demand, he shall be put to spending as many more to collect it from his attorney, and, if that attorney should not pay, then try the same track again." statute devoted to the subject of summary There is a chapter in the Digest of our judgments, and it is provided therein that judgments and final orders may be obtained on motion in certain instances, including clients for the recovery against their attorneys, and the procedure in such cases is fully outlined in the statute. Kirby's Digest, c. 94. Instead of the rule stated in the majority opinion being correct, the authorities are all just to the contrary, as stated by Mr. Thornton in his treatise on Attorneys at Law (vol. lows: See, also, 6 Corp. Juris, § 264, p. 711. Although there is some difference of opin-1, p. 612), where the rule is stated as folion among the authorities, we hold to the view above expressed, that the court has no jurisdiction to render summary judgment on motion where the verified answer of the attorney sets up issuable facts which, if true, would constitute a good defense to the motion. The answer herein stated facts which, if true, were sufficient to constitute a defense to the motion for a summary judgment. In all such cases the court should deny the motion and treat the proceeding as an ordinary action at law and transfer the same to the proper docket and allow it to take its regular course as such proceeding. It follows that the error complained of appeared on the face of the record proper, and therefore no motion for a new trial was nec essary. For the error indicated the judgment is reversed and the cause is remanded for further proceedings according to law and not inconsistent with this opinion. "In no case should the attorney be summarily compelled to pay over money to his client if it appears that the latter is not, ex æquo et bono, entitled to it. But the mere assertion of a counterclaim is not such a dispute as will, of itself, oust the jurisdiction, because the court has the may have on account of fees or other charges power to adjust any set-off which the attorney due to him in connection with the proceeding in which he received the money in question, or as the result of any services for which he has a lien on money of his client coming into his hands. The good faith of the attorney in making such counterclaim is immaterial." On page 619 of the same volume the author said: "The fact that the proceeding is a summary one does not deprive the attorney of any defense which he might have asserted in an action at law, or in a suit in equity, instituted for the same end. Thus he may set up that the money retained by him was honestly due as compensation for his services, or that he has * a valid set-off there against." The subject is thoroughly discussed in a recent opinion of the Appellate Division of the Supreme Court, which was afterwards affirmed by the Court of Appeals. Papa v. Rini, 171 App. Div. 796, 157 N. Y. Supp. 1079; 219 N. Y. 575, 114 N. E. 1076. MCCULLOCH, C. J. (dissenting). The effect of the majority opinion in this case is to hold that in a summary proceeding against an attorney instituted by his client to require payment of money received in the professional capacity, if the attorney files a response setting up an issue of fact as a defense, the jurisdiction of the court to proceed further is defeated. In other words, that an attorney charged with wrongfully withholding money of his client, however court has jurisdiction of him. When he collects "An attorney is an officer of the court. This reprehensible his conduct may be, can defeat money belonging to his client, to whom he is the summary proceeding provided by statute under a constant obligation of the highest fidelmerely by interposing a denial. I do not be-ity, he may not keep it, and from the vantage lieve that the opinion is supported by a single The Supreme Court of Minnesota in a recent case of this kind said: client to pursue the slower process of law by ground of a defendant in possession compel his be summarily adjusted. If there is a contract as to fees the court will construe it. If the at torney has a claim for fees, their amount may be determined.' Landro v. Great Northern Railway Co., 122 Minn. 87, 141 N. W. 1103. I think this court has made a great mistake from the standpoint of both reason and policy in placing such a construction on a statute which was intended to have a wholesome effect, but which is, I think, completely emasculated by this decision. The statute was construed in an early decision of this court in the case of Levy v. Lawson, 5 Ark. 212, which was a summary proceeding against a sheriff by a plaintiff in execution for failure of the sheriff to pay over money collected by that officer, and this court held that the summary remedy under the statute was available, notwithstanding the return of the sheriff showed that he had accounted for all the money received from the proceeds of the sale. This court held that the plaintiff as to general authority, and one dealing with OF AUTHORITY-NOTICE. One dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent clothed with authority coextensive with its apparent scope. 5. CORPORATIONS AUTHORITY-NOTICE. 429-AGENTS-SCOPE OF with authority to rent the corporation's lands, County; W. J. Driver, Judge. Action by the Three States Lumber Company against B. R. Moore. Judgment for defendant, and plaintiff appeals. Affirmed. Lamb & Rhodes, of Osceola, for appellant. MCCULLOCH, C. J. Appellant is the own in execution might maintain an action for the false return, but that the defaulting officer could not shield himself behind a false return and thus defeat the summary remedyer of certain lands in Mississippi county, and provided by statute. It seems to me that that decision is wholly at war with the construction the court now places upon the scope and effect of this statutory remedy. Moreover, we are precluded from considering the merits of the case because there was no new trial filed and overruled. A new trial is required as a prerequisite to an appeal where there has been an issue of fact tried by the court or jury. Kirby's Digest, § 6215. The fact that the issue was tried in a summary proceeding does not exclude the necessity for a motion for new trial giving the trial court an opportunity to correct its own error before there can be a review in this court. But this court now holds, as I understand, that where the attorney files an answer the jurisdiction of the court is defeated, and that makes the error appear upon the face of the record so as to bring it up for review even without a motion for new trial. instituted this action of unlawful detainer against appellee to recover possession of the portion thereof which he was alleged to be unlawfully withholding after having occupied same as appellant's tenant. Appellee was put out of possession under the writ issued at the commencement of the action and claims damages. There was a trial of the cause before a jury, and the verdict was in appellee's favor, awarding damages for being wrongfully put out of possession under the writ. The land was leased by appellant's agent to one Robinson for a term ending December 31, 1916, and appellee obtained possession as a subrenter under Robinson. Appellee claims that just before the expiration of the lease he rented the lands from appellant's agent for the year 1917, and held possession pursuant to that contract. He also claims that I dissent from the conclusion reached by of the contract that he was to occupy the he planted a part of his crop upon the faith the majority. THREE STATES LUMBER CO. v. MOORE. (No. 174.) premises for that year. [1] On the trial of the cause appellee adduced testimony sufficient to warrant the finding that Tompkins, the agent of appel (Supreme Court of Arkansas. Feb. 25, 1918.) | lant, entered into a contract with appellee for 1. APPEAL AND ERROR 999(1)-SCOPE OF REVIEW-FINDINGS OF FACT. Where a question of fact whether defendant dealt with plaintiff's agent without notice of limitations on his authority was properly submitted to the jury, its verdict is conclusive. 2. PRINCIPAL AND AGENT 116(1) SCOPE OF AUTHORITY-NOTICE. An agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent's authority. 3. PRINCIPAL AND AGENT 147(3), 148(3) SCOPE OF AUTHORITY-SPECIAL AGENT. Where the agent's authority is confined to a single transaction, there is no presumption the renting of the premises for the year 1917 at the price of $8 per acre. The testimony adduced by appellant was to the effect that Tompkins was the agent of appellant, with authority to rent its lands for the year 1917, but that he was instructed to rent only for a share of the crop, and not for money rent. There is some uncertainty in the testi mony as to whether appellee had notice of the limitation upon the authority of Tompkins with respect to the particular kind of rent contract, and the jury might have found either way on that question. It was submitted to the jury, and we must treat the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes verdict of the jury as settling the issue in appellee's favor, that he dealt with Tompkins without notice of the limitations upon the latter's authority. [2] The contention of the appellant is that it being undisputed that the authority of Tompkins was restricted to a renting of the lands for a share of the crop, appellee was bound to take notice of those restrictions, and that a contract made by Tompkins in violation of his instruction, was not binding upon appellant. The law is that an agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent's authority. Parsel v. Barnes, 25 Ark. 261; Jacoway v. Insurance Co., 49 Ark. 320, 5 S. W. 339; Liddell v. Sahline, 55 Ark. 627, 17 S. W. 705; Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301, 119 S. W. 282, 134 Am. St. Rep. 40; Brown v. Brown, 96 Ark. 456, 132 S. W. 220. [3, 4] An exception to that rule is that where the agency is special, and not general, that is to say, where his authority is to be confined to a single transaction or to a particular act, there is no presumption as to general authority, and one dealing with him must ascertain the extent of his authority. Liddell v. Sahline, supra; Mutual Life Insurance Co. v. Reynolds, 81 Ark. 202, 98 S. W. 963; Jonesboro, Lake City & Eastern Rd. Co. v. McClelland, 104 Ark. 150, 148 S. W. 523. But one dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority co-extensive with its apparent scope. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130. [5] Tompkins was a general agent with authority to rent appellant's lands, and it was within the apparent scope of his authority to fix the terms of the rental contracts. Those who dealt with him in the transactions were not bound to take notice of specific instructions which constituted restrictions upon his authority with respect to the terms of the In an action for rent of a machine, evidence of the deterioration of the machine from ordinary use while in defendants' hands was competent to aid the jury in estimating the reaestablish a right of action in tort for the neglisonable rental value, but not competent to gent use or wrongful withholding of the machine. 3. BAILMENT 33 ACTION FOR RENT OF MACHINE-DAMAGES-INSTRUCTION. In an action for rent of a machine, the cour✶ erred in charging that the measure of recovery would be the difference between the value of the machine when delivered to defendants and its value when returned. Appeal from Circuit Court, Little River County; Jeff. T. Cowling, Judge. Action by J. B. Hill and others against Donald McDonald and others. From a judgment for plaintiffs, defendants appeal. Reversed, and remanded for new trial. June R. Morrell, of Ashdown, for appellants. A. D. Du Laney and John J. Du Laney, both of Ashdown, for appellees. McCULLOCH, C. J. Appellee instituted this action against appellant to recover a sum of money alleged to be due for the rent of an underreamer, a tool or machine used in the drilling of wells, and it is alleged in the complaint that appellants rented the tool and used it for a period of 60 days, and that a reasonable rental value thereof was $10 per day. Appellants filed an answer denying that they rented the tool or machine from appellees. There was a trial of the issues before a jury, and the evidence adduced by appellees tended to show that appellants obtained possession of the underreamer from them for use, and that there was no specific agreement for the payment of rent, but that the circumstances were such that the jury might have inferred an agreement on the part of appellants to pay a reasonable rent On the other hand, the for the use of it. testimony of appellants tended to show that appellees lent them the machine gratuitously under circumstances which excluded any legitimate inference of an agreement to pay for its use. The testimony seems to have been sufficient to support a verdict either way on the question of liability of appelrent of the machine during the time they lants for the payment of a reasonable sum as used it. During the progress of the trial appellees were permitted, over the objections of appellants, to prove by witnesses that the machine deteriorated from use of it by appellants, and that it was not in as good condition when returned as it was when appellants received it. Some of the witnesses testified that the machine was practically valueless when returned. There was, however, no testimony tending to show improper or negligent use of the machine by appellants; the testimony being confined to deteriora ENT CONTRACTOR-TORt of. for tort of an independent contractor, clearing A contractor, digging a ditch, is not liable the right of way, who threw logs and brush on the adjoining lands. tion from ordinary use. The court, over the | 4. MASTER AND SERVANT 323-INDEPENDobjection of appellants, treated the complaint as amended, so as to set forth grounds for recovery for the damage done to the machine, and instructed the jury that if appellants "obtained possession of this machine, and kept it and used it, and brought it back in a damaged condition," the verdict should be for the plaintiff, "and the measure of damage would be the difference between the value of this machine at the time they received it and the time they returned it, or what it would cost to repair it, if it could be repaired." [1, 2] The amendment and the instruction of the court submitting the issue to the jury constituted a complete change of the cause of action from contract to tort, and it was error for the court to permit that to be done. Grist v. Lee, 124 Ark. 206, 186 S. W. 825. Moreover, the evidence was wholly insuffi cient to warrant a submission of the issue of negligence on the part of appellants in the use of the machine or wrongfully withholding the machine, so as to justify recovery of damages. The evidence of deterioration of the machine from ordinary use was competent to aid the jury in estimating the reasonable rental value; but it was not competent to establish a right of action for the negligent use or wrongful withholding of the machine. In fact, the only issue presented by the evidence was whether or not there was a renting of the machine under an implied agreement to pay for its use, or whether there was merely a gratuitous lending of the machine. [3] The court was therefore in error, not only in permitting the change in the cause of action, but also in its charge to the jury, stating that the measure of recovery would be the difference between the value of the machine at the time it was delivered to ap pellants and its value at the time of its re turn. Reversed and remanded for a new trial. NORTHERN CONST. CO. v. JOHNSON. (No. 176.) 5. PLEADING 8(20)-CONCLUSIONS. contractor, did not complete a contract to clear Allegations that defendant, an independent a right of way in time, and plaintiff contractor, by reason of delay, was compelled to pay a drainage district $880, were too general, and were mere conclusions, as it is impossible to determine whether there has been a violation of a contract, when the terms of the contract are not set out. Appeal from Circuit Court, Clay County; R. H. Dudley, Judge. Action by the Northern Construction Company against A. B. Johnson. Judgment for defendant, and plaintiff appeals. Affirmed. T. J. Crowder, of Blytheville, for appellant. J. L. Taylor, of Corning, for appellee. WOOD, J. The appellant instituted this action against the appellee, alleging : That on the day of it entered into a contract with a drainage district in White county, Ark., near Judsonia, to dig a ditch according to certain plans and specifications, and in a certain time set out in the contract; that it entered into a contract with the defendant, A. B. Johnson, whereby he agreed to clear and prepare said right of way, and cut cordwood thereon, within a time sufficient to enable the plaintiff to comply with its contract with the said drainage district. (1) That the defendant began said work in clearing and preparing the right of way and continued to work for some time, but before completing said right of way he quit; that plaintiff urged him to begin said work, and he promised from time to time to do so; that plaintiff dug the ditch to the end of the cleared defendant still promised to do said clearing, but right of way and was compelled to stop; that failed to do so, and thereby delayed plaintiff 22 shifts, by reason of which delay plaintiff suffered damages in the sum of $880. in clearing the right of way, threw logs and (3) Plaintiff further alleged that the defendant brush off of the right of way onto the land owned by adjacent farmers, on account of which plaintiff suffered damages in the sum of $225, the amount it was compelled to pay said farm ers. (5) Plaintiff further alleged that on account of the manner and time in which the right of way was cleared and prepared, plaintiff was compelled to account to the drainage district for (Supreme Court of Arkansas. Feb. 25, 1918.) the sum of $880. 1. PLEADING ~8(20)—CONCLUSIONS. Allegations that defendant quit before completing his contract to clear off a right of way for a ditch, and thereby delayed plaintiff 22 shifts, and damaged plaintiff $880, were too general, and mere conclusions. 2. DAMAGES 121-BREACH OF CONTRACTMEASURE OF DAMAGES. Where a contractor abandons a job, the measure of damages is what it would cost to complete it in excess of the contract price. 3. CONTRACTS 337 (2)-PLEADING ALLE GATIONS. Allegations that contractor, clearing right of way, threw logs on adjoining lands, causing plaintiff to pay damages, was demurrable, in not stating where the contractor was supposed to place the logs. The prayer of the complaint was for judg. ment for $2,543. The appellee demurred to the first, third, and fifth paragraphs of the complaint. The court sustained the demurrer, and this appeal challenges the ruling of the court. [1, 2] The first paragraph of the complaint alleges that appellee began work in clearing and preparing the right of way, but quit before completing his contract, and therefore delayed plaintiff 22 shifts, which delay damaged appellant in the sum of $880. There are no allegations to show how a delay of 22 shifts would result in damage to appellant in the sum of $880. The allegations For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
