This court undoubtedly is committed to the rule that "while the findings of the referee are not absolutely conclusive, they are to be given the same dignity as a special verdict by a jury or the findings of a trial court, and whenever they depend upon conflicting testimony, they will be treated as unassailable if there is any substantial evidence to sustain them." (In reLunke, 56 Mont. 226, 182 P. 126; In re Griggs, 74 Mont. 373,240 P. 820.)
When there is no substantial conflict in the evidence a case is stripped of questions of fact, and it remains to determine the questions of law which arise upon the facts. When the evidence justifies but one conclusion the law requires judgment to go accordingly. (Milwaukee Land Co. v. Ruesink, 50 Mont. 489,148 P. 396.)
As said in the majority opinion the findings of a referee must rest upon the evidence, and his conclusions upon their soundness in law. Where the evidence is in conflict the finding of the referee will be held conclusive. Where not in conflict his finding is persuasive only. If he draws the wrong conclusion from the facts the court should disregard the conclusion.
In this case a situation was presented the recitation of which may serve an explanatory purpose. After this court, upon a *Page 563 showing not very strong, in order to give the accused an opportunity to clear himself of the charges made against him, had set aside the default of the accused, and had again referred the matter to Judge Cheadle, the accused filed in this court a motion, based upon some trifling occurrence in the past, objecting to Judge Cheadle as referee. This court ordered the flimsy motion stricken from the files but simultaneously with the making of the order a communication in writing was received from counsel for accused withdrawing the motion. In view of these facts, known to the referee, I think that distinguished and honorable gentleman in an endeavor to be meticulously fair in his judgment of the accused, leaned too far in his favor. Be that as it may; I propose to decide this case for myself on the accused's own testimony.
1. In the beginning he received for collection from Mrs. Burns a claim against the Campbell Petroleum Company, in amount $1,050. It was a claim for labor done by Mr. Burns. On November 21, 1923, he asked for $15 "court costs." A week later, acknowledging the receipt of the money, he advised Mrs. Burns that Burns had a right to a lien for his services; the lien, he said, "attaches to all equipment upon the lease, on the leasehold interest, and on any material or production that is there." He requested an itemized statement from Mr. Burns, saying that upon its receipt he would prepare the lien claim for Burns' signature and verification. "I will then file it and we can foreclose the lien and secure Mr. Burns' money."
So far as the record discloses accused never again communicated with Mrs. Burns until after this disbarment proceeding was commenced.
During "the latter part of 1924" the Gordon Campbell Petroleum Company paid accused $100 to apply on the Burns account. When was it paid, in October, November or December? The accused does not say; why does he not say?
In "the fore part of March, 1925, or it may have been the latter part of February," the company paid him $462.50 more on the account, and the company agreed to pay him the balance *Page 564 very shortly. Soon after receiving that money he went to Cleveland, remaining there until the latter part of March. In the meantime the company had sent directly to Mrs. Burns the balance due her. When accused returned to Great Falls, did he demand of the company the balance which it had promised to pay very shortly? He did not. The first of April, on account of his being otherwise engaged, accused turned over his office to a man named Brown, whose duty it was "to take care of everything that was there." Did he turn over the money he had collected for Burns to Brown, or say anything to Brown about the Burns matter? He did not. Now as to his explanations. "The fact was I really forgot all about this matter, had no further communications with Mrs. Burns and I overlooked it entirely." He was in the oil field during the spring and summer of 1925. He was called to Cleveland about the middle or latter part of August. "I had forgotten about the Campbell matter, about this claim, had not heard from Mrs. Burns, but I first off did not remit it to her because I was expecting to collect it all." "On account of drilling this well and being engaged in the oil business I had forgot all about it and never heard anything about it; it slipped my mind." Just before he left Montana in August, 1925, on his trip to Cleveland, he received a letter from Mrs. Burns inquiring about the matter "and when I went down to Cleveland, got engaged in this other business, I forgot about it, until my attention was called to it, as I say, through the newspaper clipping." "If it had not been that I was engaged otherwise, in fact, forgot about it, and been a little negligent on account of having turned the office over to Brown, I sort of went out of the office, did not have anything to do with it." "If it had not been that I was connected with the oil business, spent my time on that, was all wrapped up in it, I would have taken care of it sooner." "I got a letter the morning I left here calling my attention to it, and I then intended to take care of it, but this telegram called me down there, and when I got *Page 565 down there I got into that work, looking after that matter, and I really forgot about it."
Undoubtedly prospecting for oil is an absorbing activity, but it is hard to believe that it engulfs its votaries in any such maelstrom of intensity as this. He explains further: "I would have remitted it on the day I got it if it was not for the fact that I had been promised he would pay the balance shortly."
"Q. Now, Mr. McCue, was it because you had forgotten you had made this collection for Mrs. Burns, or was it because you were waiting for the balance, to pay the balance, that you delayed as long as you did in making the payments? A. No, I delayed first off, if it had not been upon the promise of Campbell I would have remitted immediately. The temporary delay was on account of the promise that he would pay it all shortly.
"Q. About how long after you received the money did that temporary delay occasioned by that cause occur? A. Well, it occurred up to the time I left there. I left in March, 1925, and went east."
When at Rochester, New York, a friend called his attention to a clipping from a newspaper in which he found that charges had been presented against him by the attorney general. He immediately went to Cleveland, where he had his money, wrote Mrs. Burns a letter, with which he transmitted a draft for $377.20. His memory then was keen; although his books were in Great Falls, he explained his version of the transaction in detail, remembered the receipt of the sums of $15, $100 and $462.50, and his expenses in the matter down to the cent.
His excuses for his delinquency fall under two heads: (1) he would have remitted immediately if he had not been promised the balance; (2) he forgot. Under his own showing, and with due consideration for human frailty, neither excuse is tenable. It was his duty to send the $100 which he collected in the latter part of 1924, possibly as early as October, immediately to his client, laboring people. It may be presumed they had some use for it. Surely the sum was large enough to warrant remittance promptly. *Page 566
In the case of In re Waddell, 54 Mont. 597, 172 P. 1036, it was shown that Waddell collected money on May 12 which he did not remit until October 16. When he collected the money he did not report the fact but concealed it; three months and a half thereafter he wrote his client that he expected to get the claim settled in from four to six weeks. The court said: "This breach of faith and deceit alone would command his disbarment, but his failure to pay over to his client promptly the money he had collected was equally reprehensible."
Now accused did not forget this $100; he was only holding that until he should collect more, according to his testimony. Even if he received it in December, why did he withhold it until the latter part of February or the first of March? Is this temporary delay? If he could hold it two or three or four or five months, why not a year? When he received the $462.50 he had $562.50 to remit. He did not do so; he forgot. He did not remit, nor did he write to Mrs. Burns, upon receiving her inquiry in August. Was he too busy when upon the train to acknowledge the receipt of her letter? It would seem that the ordinary man would have taken the time to answer the letter and to assure her that the money would be remitted at the earliest practicable date.
"No demand was made upon him." Demand from a client whom he had kept in the dark and who did not know he had collected a cent?
It is said he did not convert the money to his own use. Let us see whether the record justifies this assertion.
When the accused received the money what did he do with it? Did he keep it separate from his own funds? He did not so testify. Every indication is that he commingled it with his own funds and used it for his own purposes. The record shows that on July 27, 1925, he had but $4.74 in his T.F. McCue Trustee account; this account was used in carrying on his oil business. He did not then have any bank account in his own name. After his partner, Stevenson, withdrew from *Page 567 the firm of McCue Stevenson in 1924, accused carried his personal funds in an account in the firm name until some time in July, 1925, after which he held his funds — "my funds," he says — in his safety deposit vault. After July 1, 1925, he did not have to exceed $100.19 in the McCue Stevenson account at any time and that was upon August 11. On August 20 his balance was $5.08. When he remitted to Mrs. Burns on November 4, 1925, he did so from Cleveland, Ohio, where he says, "I had my money." If he did not employ his client's money for his personal uses he should have said so. This money was a trust fund in his hands. "He had no right in law or morals to mingle the trust funds with his own private property, or to profit by the use of funds belonging to his client. (In re Allard's Guardianship, 49 Mont. 219,141 P. 661.)" (In re Lunke, supra; Sparhawk v. Sparhawk,114 Mass. 356.) It is said he frankly admits his delinquency. It is difficult to see how he could do otherwise after his letter of November 4, 1925, to Mrs. Burns, which was after this proceeding for his disbarment had been filed.
So it seems to me that upon the accused's own testimony the learned referee has drawn the wrong conclusion. Accused is excused on the ground of forgetfulness, — inadvertence, it is called. Inadvertence is "an effect of inattention; a result of carelessness; an oversight, mistake, or fault from negligence." (Webster's International Dictionary; Greene v. Montana BrewingCo., 32 Mont. 102, 72 P. 751.) What is excusable neglect on motions to set aside default judgments has been considered by this court. In Herbst Importing Co. v. Hogan, 16 Mont. 384,41 P. 135, a showing that the defendant's counsel was very busy with other professional matters, was embarrassed by attention upon members of his family who were ill, and was himself absent, being called away by the illness of his mother, was held insufficient to excuse a want of answer on part of defendant.
In Scilley v. Babcock, 39 Mont. 536, 104 P. 677, the defendant's counsel, who was a candidate for public office, in the heat *Page 568 of a political campaign and because he was busily engaged in the canvass for votes, simply forgot all about his clients' case. Held no excuse upon a motion by them to set aside their default for want of appearance. (And see Vadnais v. East ButteExtension Copper Min. Co., 42 Mont. 543, 113 P. 747.)
It stands admitted in the record that accused received the Burns claim in November, 1923; that after November 21, 1923, he did not communicate with his clients until November 4, 1925, after this proceeding was instituted, a period of nearly two years; that in the latter part of 1924 he collected $100, which he did not remit for nearly, or quite, a year; that about March 1, 1925, he collected $462.50 which he retained for eight months, notwithstanding his receipt of Mrs. Burns' letter in August, 1925. That this excuse of forgetfulness, under the circumstances, can be regarded with seriousness by the judicial mind seems to me inconceivable.
Before the rendition of the majority opinion I should have said that lawyers who collect money for their clients and forget to remit must present better excuses than those presented in this case, if they expect to be allowed to continue in a profession in which honor and integrity are watchwords. "The three main requisites of a lawyer are learning, diligence, and integrity; but the greatest of these is integrity." (In re Duncan,64 S.C. 482, 42 S.E. 433.) Integrity is "moral soundness, honesty; freedom from corrupting influence or practice, especially, strictness in the fulfillment of contracts, the discharge of agencies, trusts and the like; uprightness, rectitude." (Webster's International Dictionary.)
2. The referee's findings and conclusions as to specifications 2 and 4 must be sustained, in my judgment.
3. The referee's finding and conclusion upon specification No. 5 is more difficult. But the accused's testimony here is evasive, shifty and contradictory.
In answer to the inquiry whether Wyman, Partridge Company had placed in his hands the claim against the Eager Mercantile Company he answered they had not, but to the *Page 569 next following question, "Had any such claims been placed with the firm of McCue Stevenson, with which you were at that time?" he answered, "From the correspondence I find that there was." In answer to the question as to whether McCue Stevenson accepted the claim from Wyman, Partridge Company he said, "I presume they did." Yet in a letter written to that company with respect to this very matter he said: "I also know I did a great deal of work in 1924 on a bunch of notes they sent us as collateral; afterwards your representative called and took these notes and we never got a postage stamp for our trouble and time spent and unquestionably if we were permitted to keep those notes, results would have been realized on this work." He said that he did not know whether the firm collected $250 from the Eager Mercantile Company, but as a fact, long before the time he testified, he had written a series of letters to Wyman, Partridge Company in which he showed that he was thoroughly familiar with the fact; that the ledger showed that on November 8, 1923, McCue Stevenson credited the Wyman, Partridge Company account with $250 received from Eager Mercantile Company on November 14, 1924. Wyman, Partridge Company were sent check No. 3025 for $230 and charged a commission of $20, which should have been $37.50. In answer to the question whether the Eager Mercantile Company had paid $264.10, he said, "I think they paid it to the firm of McCue Stevenson." All he knew about it, he said, "is what I looked up since returning to the state of Montana." "I would say that, as far as my personal knowledge is concerned, I have no personal knowledge, but after looking up such evidence as I had after returning here to Montana, I believe they did." The truth is that he personally signed a letter dictated by himself, dated December 27, 1923, addressed to Eager Mercantile Company, acknowledging the receipt of a check for $264.10 to apply on the account of the Wyman, Partridge Company. He said he did not know whether McCue Stevenson ever notified Wyman, Partridge *Page 570 Company of the receipt of the $264.10. In a letter to that firm dated March 12, 1927, he said, "I do not want to convey the impression that I am intending to recoup by any charges. The books show no remittance for the $264.10 and I confess that it was my duty to have such a matter attended to, but it never came to my notice and as far as I am personally concerned, it was a clear oversight, but it is a matter that can be squared in dollars and cents."
On the 23d of April, 1927, McCue paid Wyman, Partridge Company the sum of $555.48. His claim that he did not owe that company anything and that he had a right of recoupment against it is manifestly an afterthought. His reasons for remitting the $555.48 only make the matter worse. Did the accused as an innocent man, asserting his innocence, demand an investigation of the charge and his vindication? No, he paid a sum of money on condition that the charge be dismissed. It was suggested in conference that specification No. 5 is not based upon the action of accused in attempting to suppress evidence; but this testimony came out in the hearing. It was competent, and serves to illustrate the entire transaction. It condemns the attempted explanation of the accused. The reprehensible conduct of Wyman, Partridge Company is commented upon in the majority opinion.
But it is said the referee saw the accused upon the witness-stand, heard his voice, observed his appearance and demeanor and was much better qualified than is the judge sitting in review to give the testimony the weight to which it is entitled (In re Griggs, 74 Mont. 373, 240 P. 820), and that the referee's finding upon conflicting testimony will not be disturbed. (In re Lunke, 56 Mont. 226, 182 P. 126.) Granted. But here the testimony is not conflicting; the facts set forth above are admitted. Here neither honest appearance and demeanor nor unctuous words can blot out the damning facts.
4. Now, a word with respect to our power in the premises. The power to strike the name of an attorney from the rolls is inherent in the court itself. "No statute or rule is necessary *Page 571 to authorize the punishment in proper cases. Statutes and rules may regulate the power but they do not create it. It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good in the protection of clients." (Weeks on Attorneys, 2d ed., sec. 8.) Surely this is a case which calls for an exercise of the disciplinary powers of this court over an attorney who has been remiss in the discharge of duty.
For these reasons I cannot agree to a dismissal of this proceeding.