Wood v. Brown

Headnote

Attorney and client—instruments favorable to attorney given on settlement between him and client, burden of justifying rests on attorney.

Appeal from judgment in favor of defendant, with costs, etc., entered on report of a referee.

This action was brought for the purpose of setting aside a release executed by the plaintiff in April 1877, in favor of the defendant, and for an accounting and payment by defendant to the plaintiff of all moneys found to be due-by defendant to him. The case was referred by consent, to a referee to hear and determine. The defendant was an attorney and counselor; and plaintiff claimed that defendant acred in that capacity toward him during a period extending over about eighteen .years. At the close of the evidence the plaintiff’s counsel stated the claims against the defendant to be, that the defendant was the real attorney of the plaintiff during the period claimed in the complaint; that plaintiff should have credit on account witli the defendant for $2,000, as paid by plaintiff in a tax matter; that a charge made by defendant against plaintiff for costs, allowance, etc., in a foreclosure suit for $50;000, carried on by defendant, should not be allowed, beyond the amount of $300 ; that éxpenses of examining title of property, on the security of which loans of $1,155 and $1,500 were obtained, should not be charged against plaintiff; that a releo se by plaintiff to the defendant should be set aside.

As to each of these jdaims, the referee found against the plaintiff and in favor of the defendant.

After a review of the evidence, the court at general term said :—“ The plaintiff executed a release to defendant, which was duly witnessed and delivered to the defendant. The referee lias found that this release is, in all respects, a good

and valid instrument, and should stand as a final settlement with respect to the matters therein set forth. We have considered the evidence on that question, with careful regard to the rule to which our attention has been called by the learned counsel for the plaintiff, that in transactions between attorney and client, the burden rests on the attorney of justifying instruments beneficial to himself, and are of opinion that the finding and conclusion of the learned referee sustaining the release are correct.