charged, the jury. There have been some questions raised and argued to the court during the trial of this cause with respect to plaintiff’s right to recover, the admissibility of evidence, &c., with all of which you have no immediate connection. With regard to these, parties have the benefit of their exceptions in case any of the rulings of the court upon these points should, upon more careful and extended consideration by this court or by a higher tribunal, be deemed erroneous.
In this case, from the very nature of the questions which have been raised, and the peculiarly legal character of the points presented, your duty is necessarily very restricted. The action is brought in the form called trover, to recover certain specific personal properly, or its value. If you find for the plaintiff, you will merely find generally the amount which the testimony has shown to be the value of the property claimed. It appears that it once belonged to Bien — that he by a bill of sale transferred it to McKinnon — that the latter demanded it of defendants, Cook and ZabrisMe, and that upon this demand, they refused to deliver it to him. If you consider that the proof shows this, and that Cook and ZabrisMe had it in their power and under their control at the time of the demand, then plaintiff has made out a prima facie case. Plaintiff has contended, as matter of law, that although Bien at the time of this transfer by him, had not the possession of the box in question, or of its contents, and although defeúdants claimed to hold it adversely to Bien, and claimed to be the ownera of it, yet that does not affect his right to recover. Upon this point ,1 will charge you that if, at the time of the sale to plaintiff, Bien had the title to'the box and the whole of its contents, the fact that the defendants had the possession and claimed it as their own, will not bar a recovery.
Plaintiff having thus, as I stated, made out a prima fade case, defendants then justify their refusal to surrender the money, by alleging that it had, before the sale to plaintiff, become theirs by purchase — that is, they claim that it had previously been transferred to them as a compensation for professional services — as a retaining fee. If you find from the evidence that the title to any portion of this property had passed to defendants by transfer from Bien, before the sale of the whole of it, by him to plaintiffs, then the latter cannot *46recover, because the action is for one specific thing, to wit, a box and its contents, and the plaintiff cannot recover something else which he has not claimed.
Plaintiff relies upon Bien’s testimony to show that, as matter of fact, there never did exist any valid contract by which Bien parted with the title to any portion of the contents of the box to defendants— and to show that it was merely deposited with them for safe-keeping. This is the most important of the different questions which have been raised, which properly come before you, and not the court, for consideration and final disposition — whether Bien, by any valid contract made with defendants, over divested himself of the title' to any portion of this property, and conveyed the same to defendants. If you find, from all the testimony, that this was actually the case, then defendants are entitled to your verdict. If you are satisfied from the evidence that the order for the box, given by Bien to Cook and Zabriskie, was not given for the purpose of enabling them to obtain possession of it as a deposit and for Bien’s benefit — but that the intention of the parties at the time was, that they should be thereby enabled to take out their fee — although the remainder was to have been retained in possession by them, as bailees — then also-you should find for defendants. This is the question, and the only question submitted to you: was there a contract — and a fair and valid contract— made between Bien and defendants previous to thetransfer by t he former to plaintiff, by which it was agreed that they were to take their fee from the box and money placed in their hands. If you find affirmatively upon this issue, you must find for the defendants.
In detennining this point you can consider the magnitude of the fee by defendants alleged to have been contracted for, but under one point of view only — that is, as a circumstance tending to show whether or not such a contract ever did, as a matter of fact, actually exist. This is not a case where you can take into consideration the magnitude of the fee claimed, as being unconscionable, or that the contract was one to be relieved against, or as a case in which you have a right to declare that the fee is unreasonable, and to diminish or regulate it according to what may be your .opinions of a just and reasonable fee under the circumstances. That question does not arise in the case. The plaintiff must recover everything or nothing; you cannot give *47them a partial verdict and deduct what you think defendants ought, in right to receive as compensation for the services which it has been proven that they did actually render. . You must only take the magnitude of this fee claimed as a circumstance or indicium tending to show the existence of a contract.
But this contract, whatever may have been its terms, must have-been a fair one, and if you find that when it was made, there was any undue advantage taken of Bien’s condition, or that any undue influence, imposition, or fraud was practised upon him, or that he was at the time laboring under such a state of excitement as would disable him from a due. and proper use of his reasoning faculties, — then in any and every such case, any contract which might have been made with him, however just and reasonable it may have been, would be absolutely void, and although it should have been of the character which I have heretofore mentioned, that is that defendants were to take their fee from the box and money placed in their hands, — such a contract, made under such circumstances, would not divest Bien of the title to any portion of that property and transfer it to defendants, or bar plaintiff’s right to recover. If you should be satisfied that a contract was made, that Bien! s mental, condition was not such as to disable him from entering into a valid and binding contract, that no fraud imposition or undue influence was exercised or employed, then you have no power to set such a contract so made aside on any grounds whatever. Under our statute those standing in the relation of attorney and client are at Eberty to make any contract they may see fit, but this neither abrogates nor alters the common law rule of the necessity for the observance of perfect good faith on the part of him who stands in the pecuEarly confidential relation of counsel, — and under our system, as weE as under the common law, the employment of any threats or misrepresentations, or fraud by the attorney, to prevent or influence the free exercise of the client’s judgment, would avoid any contract however reasonable, that might have been made.
You are at liberty to find against one and in favor of the other defendant, and if so, you will express the same by your verdict. If you should find that Cook did not personally make any contract with Bien, —that it was made by Zabriskie on behalf of himself and Cook, but that Zabriskie employed any of the unfair means- to which I have *48referred, — the fact that Cook had no hand in the matter, is no reason why he should retain the money, obtained in pursuance of such a contract, and will not bar a recovery against him. But, however your verdict may be as to the persons of the defendants, it must be for the entire box and contente, and unless these were originally deposited by Bien in the hands of defendants as bailees, your verdict must be in their favor. The declarations of Zabriskie which have been proven to you, with regard to the nature and terms of this contract, are not evidence against Cook, unless there was but one common contract made by both Cook and Zabriskie with Bien, — but if on the contrary you should be satisfied that each of the defendants made his separate contract with Bien, then Zabriskie's declarations are evidence only against himself.
If you should find for plaintiff, and should conclude that defendants came jointly into possession of the property, and that, at the time of the demand by McKinnon, it was under their joint control, ymj will find against both.
The jury found generally for the defendants.