(dissenting) — I am unable to concur in the conclusion reached by the majority. In my opinion, it does a grave injustice to an able and distinguished lawyer, now in the decline of life, whose conduct as a practitioner, unless this one act be an exception, has always been above just criticism. I will not quarrel with the recitals of fact made by the majority, although my examination of the record con*438vinces me that, if the settings of many of the facts recited were more fully detailed, they would take from them much of the sting the more brief recital implies. To illustrate my meaning, I may mention the sale of the Pacific county lands; It is true that, when this sale was agreed upon between Mr. Conner and the purchaser, it was a part of the agreement that the purchase price should be paid to Mr. Hodgdon, and that he should take the necessary steps to perfect title in the purchaser; the contract being that the purchaser should have an unincumbered title. This agreement was made without consultation with Mr. Hodgdon, and he first learned of it when the money was brought to him by the purchaser and the purpose of its bringing stated to him. Before paying out the money, Mr. Hodgdon called in Mr. Conner and had him verify the statements of the purchaser. He then proceeded to disburse it in accordance with the directions given him, and no contention is made that he did not faithfully perform the trust.
This transaction is recited, as I understand the majority, not for the purpose of showing a sinister motive on the part of Mr. Hodgdon with relation to the land now in dispute, but for the purpose of showing an unusual relation of trust and confidence then existing between Mr. Conner and Mr. Hodgdon, and as evidence of the existence of such a relation at the time of the purchase made by Mr. Hodgdon of the land in dispute. But I cannot think it has even the remotest bearing on the question. It undoubtedly shows that Mr. Conner, in common with the purchaser, had a just confidence in Mr. Hodgdon’s integrity and selected him to do, what the parties themselves could not do, the detail work necessary to a compliance with their agreement. But aside from the fact that the transac*439tion involved a considerable sum of money, there was nothing unusual in it. Similar transactions occur in the practice of every reputable lawyer. More than this, it was the purchaser, and not Mr. Conner, who took the greater risk, if risk there was. He paid the money over to their common agent, and if the agent had failed in the performance of the trust, he, and not Mr. Conner, would have borne the principal loss.
I am aware that the majority have taken the pains to recite that certain of the purchase money was paid on mortgages on the very property which Mr. Hodgdon afterwards acquired. If by this the majority go further than I have assumed they intend to go, then I say they have drawn a wholly unjustifiable inference from the fact. This transaction not only occurred long-prior to the purchase made by Mr. Hodgdon, but prior to the time the judgment was obtained under which the property was sold. Seemingly nothing short of prescience could then have made known to Mr. Hodgdon that he would subsequently become the purchaser of the property. So, with the other transactions on which the majority lay stress. As I view them, they are nothing more than the usual and ordinary transactions which occur between all capable lawyers and their clients. While such relations imply trust and confidence with respect to the particular matter in hand, they do not create such a general relation as would forbid a lawyer from dealing with the client, in matters in which he is not employed as an attorney, as he would deal with strangers generally.
But the facts which seem to me to be controlling-are facts which the majority do not stress. The record makes it clear that Mr. Hodgdon was never the general attorney of Mr. Conner. While Mr. Conner usually employed him when he needed the services of an attorney, the employment was always for the particular *440case, and always ceased with the cessation of the particular case. He was paid no regular retainer, and the record does not disclose that there was even a common understanding between them that he was to be employed when Mr. Conner needed the services of an attorney. This, as I view it, does not create a general trust relationship, such as must be found in order to hold there was a trust relationship with reference to the property in question.
Again, the record discloses that, at the time of the sale of this property, Mr. Conner was utterly and hopelessly insolvent. Not only was the property itself covered with mortgages up to its practical value, but Mr. Conner was otherwise indebted in large sums, a part of which had been reduced to judgments, none of which was subsequently paid. By honest conduct he could not then hope to save to himself any part of the property. Ultimately it must go to the satisfaction of his creditors. To say, therefore, that Mr. Hodgdon purchased this property in trust for Mr. Conner, is to say that he conspired with him to withdraw the property from the reach of Mr. Conner’s creditors; in other words, to cheat and defraud them. I can find nothing in the evidence that justifies so grave a charge. Certainly there is nothing in Mr. Comer’s conduct to indicate that he so intended. During the years that he subsequently lived he made no claim to the property. At one time when rent was inadvertently paid to him by one of the tenants of the property he returned it to the payer. He told other persons who inquired concerning the property that he had nothing to do with it, and referred them to Mr. Hodgdon as the owner. He paid no part of the indebtedness against the property, either of principal or interest, and his conduct was generally the conduct of one who considered the property as wholly lost to him. As to Mr. *441Hodgdon, his conduct with reference to the property has ever been that of an absolute owner. At no time has he recognized that Mr. Conner had an interest in the property, and he has dealt with it in such a manner as not only to involve seriously his own interests, but the interests of other persons who must necessarily suffer thereby if it is property held in trust. Conduct such as this is not the ordinary conduct of men conspiring to cheat and defraud others. Usually there is something in the particular transaction and in the subsequent acts of the parties which point to such a conclusion. Here there is nothing. The whole case rests upon the prior relations of the parties and in them must be found the fraudulent purpose. I cannot believe the evidence justifies such a finding.
Contrary to the conclusion of the majority, I am of the opinion that the trial court unduly limited the testimony of Mr. Hodgdon. Mr. Hodgdon was the first witness called by the representative of the estate. «lie was made to testify concerning his relations as an attorney with Mr. Conner, even to the fact that he represented Mr. Conner in the action in which the judgment was obtained under which the property was sold, and to the fact that he became the purchaser at such sale. When his own counsel sought to show the entire transaction concerning the sale, the objection of the statute was interposed and sustained by the trial court. In other words, Mr. Hodgdon was compelled to testify to everything which would aid the plaintiff in establishing the claim of the estate against him, and denied the right to testify to those parts of the transaction which tended in his own favor. This, as I understand it, is not the rule, and I believe is contrary to our prior holding in Robertson v. O'Neill, 67 Wash. 121, 120 Pac. 884. In that case the representative of a decedent’s estate called the adverse party and had him identify *442certain checks drawn in the adverse party’s favor; the purpose of the testimony being to show that he had received large sums of money belonging to the decedent. The court then permitted the witness to explain why the checks were drawn in his favor and to state that he gave the money which they represented to the deceased. On the appeal this was assigned as error. We, however, held that it was not so, saying that it would be palpably unjust to permit the representative of a deceased person to use the adverse party to the extent that it might aid him in defeating a claim against or in establishing an independent claim in favor of the estate, and then claim the benefit of the statute when the adverse party sought to qualify or explain his testimony; citing a long list of cases in support of the rule. It was further said:
“A like rule applies where the cross-examination is extended beyond the scope of what the witness would have been permitted to testify in chief upon direct examination. Pierce Loan Co. v. Killian, 153 Mo. App. 106, 132 S. W. 280; Edwards v. Latimer, 183 Mo. 610, 82 S. W. 109; Edwards v. White (Tex. Civ. App.), 120 S. W. 914. The logic of the cases is that the party who invokes the protection of the statute must himself respect it.”
But it is needless to pursue the inquiry further. In my opinion, there should be a judgment in favor of Mr. Hodgdon, or if not that, a new trial.
Mitchell, J., concurs with Fullerton, J.