I do not concur in the conclusion reached by my learned brother in this case. The parties dealt with each other at a great disadvantage to the plaintiffs. The latter were ignorant and inexperienced in the affairs of business, while the defendant was a lawyer, familiar with every feature of the transaction in which the note and deed of trust for $3000 were obtained from the plaintiffs. It does not satisfy the rule of reason or harmonize with human experience to say that the defendant's acts are not culpable because it is not shown that he over persuaded or unduly influenced the plaintiffs. The methods employed in the perpetration of a fraudulent transaction are as multifarious as the operations of the human mind. Overpersuasion or undue influence, to one skilled in artifice, are, in the presence of pitiable ignorance, unnecessary instrumentalities *Page 690 in the perpetration of a fraud. The ignorance of the plaintiffs of the real nature of the transaction rendered overpersuasion and undue influence unnecessary. The ignorant are most easily imposed upon. One dealing with them, although sustaining no fiduciary relation, is required, if cognizant of their ignorance, to avoid even the semblance of deception, and to deal fairly and openly with them, leaving nothing to inference or assumption. The encompassing arm of equity would be far too short if it did not require an adherence to this rule; much more strict should be its application when an attorney, resting under the shield of an ignorant client's confidence, creates an obligation and a lien in his own favor while conducting another and a different transaction as their trusted adviser. There is no more sacred relation than that which should subsist between a lawyer and his client. The ecclesiastic may extend spiritual consolation; the physician may minister to physical ailments, but the trusted lawyer has in his care and keeping his client's life, liberty and property. Whether one or the other of these rights are involved, the lawyer should so conduct himself in their protection as to leave in the disinterested mind no ground for criticism, much less complaint.
The testimony of the defendant, construed in his favor as liberally as its context will admit, does not, taken as a whole, savor of that candor which should characterize the conduct of a trusted attorney. Nor does it indicate to even the lay mind, much less that of an experienced lawyer, the performance of duties involving the exercise of legal judgment or of such vital importance during the period of his employment as to authorize the execution to him by the plaintiffs of a note for $3,000 and a deed of trust to secure the same. If any considerable amount had been due the defendant for past services he would have been enabled, despite the alleged unfortunate destruction of his papers, to have given a detailed and a convincing statement of the nature and extent of his services. Instead of this, although afforded, by the liberality of the rulings of the trial court, ample opportunity to explain the nature of his services, he contended himself with vaguely stating his agreement with the plaintiffs as to what Linneman was to pay him for his services for a year, as follows: "It wasn't altogether for a year, it was what he owed me back, and I was to represent him for the continuation of that year that I started in on, and he gave me his note for $3000 for all I had done. I let him set the value on the services himself, including what he owed me before."
The chancellor, evidently seeking to ascertain definitely what legal services had been performed by the defendant, asked him to explain the nature of the last legal service rendered by him and what he charged for same, to which he replied: "That included all he had owed me, his promise on what he owed me back. That was about October *Page 691 1, 1920, and the note was given me on the last day of December, 1920. He then had disposed of this property and got it in some shape and I wanted my fee secured, although my time wouldn't be up until the next October. I told him I thought I ought to be secured as much as I had done for him, and we agreed on what he owed me and he set the amount himself on the $3000 for what I had done for him." After the court again asked him; "What period of time does that $3000 cover?" The defendant answered: "Well, including that year, about ten years."
The foregoing is a fair sample of the defendant's testimony as to the character of his services. Summing up what may be fairly said to be his relevant testimony, his services consisted in advising the plaintiff concerning different business transactions, none of which required legal judgment, but could as well have been performed by any man of average intelligence and a reasonable amount of business experience. One matter may be excepted from this classification and that was a suit conducted by the defendant for the plaintiff which upon appeal to the Kansas City Court of Appeals was determined adversely to the contention of the defendant.
The sixty and more pages of the abstract of the testimony of the defendant, both upon direct and cross-examination, have been examined in vain to discover any definite legal services of moment rendered by him during the years he claims to have been employed by the plaintiff, for the payment of which defendant drew the note for $3000 and deed of trust to secure the payment of the same. This transaction was coupled strangely with another and different matter, concerning the good faith of which there is no question. Will it be questioned by any one of average intelligence that if such services had been rendered the defendant would not have been able readily and definitely to state of what they consisted, the time occupied in their performance and the charges made by him therefor. If it be true that these services — more in the nature of those of a scrivener, a real estate dealer or one familiar with the relative values of property — had really been rendered by the defendant and he had not been paid for the same, the reasons are stronger why he would have kept at least a memorandum of their nature and of the time consumed in their performance, and the fees charged for his services. Instead of this, if the defendant is to be believed, he spent eight or ten years in effecting sales and making land trades for the plaintiff for which he neither demanded nor received at the time any compensation; but on the contrary oftentimes advanced his own money for the plaintiff in traveling and other incidental expenses. Barring any comment as to the unusual character of this conduct in a country lawyer to whom, as a rule, retainers do not roll like gifts from the horn of Amalthea, it may be said that, to have pursued the course the *Page 692 defendant defines, he must have had the patience of the Man of Uz, the touch of Midas and the open palm of the Mother of Plenty.
Appreciating the obstacles disclosed by the evidence which bar belief in the defendant's statement, the chancellor who sat in judgment in his case, with ripened judgment and seasoned experience, either refused to believe the defendant or with wise discrimination separated his limited legal services shown by the record, from his other numerous purely business transactions with the plaintiff, and held that there was no merit in his defense.
The testimony of the witness Hannaca, for the defendant, when analyzed, lends no corroboration to defendant's contention as to the nature of his employment. Concerning an exchange of property between the plaintiff and the witness the latter testified that the defendant wrote the contract. The witness also stated he heard the defendant say in the presence of the plaintiff that the latter had not paid him anything in ten years; and also that "there was no use of their paying a real estate agent a commission when they had employed him by the year;" that the wife of the plaintiff then said: "We will see that you are well paid."
This testimony, while technically admissible, has little probative force under the pleadings. The defendant himself testified definitely, except as we have indicated, to the performance of no legal services. What services therefore had been rendered by him for which the plaintiff had not paid him are not shown, nor are they attempted to be shown by this witness. It is not shown that the plaintiff heard this conversation or if he heard it that he made any reply or understood its purport. Further than this, the assurance of the defendant that they did not need a real estate agent as they had employed him, is indicative, if of anything, of like employment on the part of the defendant, which is not within the purview of his pleading. In reply thereto the remark of the wife that "he would be well paid," authorizes the conclusion that she was ignorant of the note and deed of trust, as these, according to the defendant's contention, evidenced his payment for past and present services. If he had thus been paid, a fact she must have known if she wittingly joined in the deed of trust to secure the payment of the note, she would not have said: "We will see that you are well paid."
The testimony of this witness, therefore, when properly construed, tends rather to sustain the contention of the plaintiffs than that of the defendant.
Linas Gheens, a name which savors in sound of Chariton Bottom, was asked by counsel for the defendant if in the latter part of February, 1921, he didn't hear Fred Linneman say that "we have Mr. Henry employed by the year," to which he answered affirmatively; in addition, counsel further asked him if he didn't then ask Linneman: *Page 693 "How much are you paying him?" and that Mrs. Laura Linneman said: "Three thousand dollars. Look what he has done for us." In further disregard of the most elementary rules of evidence counsel proceeded in like manner to interrogate the witness as to his estimate of the amount of the fee. No attempt was made to determine what services were referred to or the occasion of his employment. Passing the manner of its introduction, testimony of this character can scarcely be said to rise to the dignity of proof of a lawyer's services, especially in the absence of any evidence that an occasion existed for such a declaration on the part of Mrs. Linneman to a casual visitor. The entire conversation, measured by its subject-matter and the manner in which the witness was interrogated to secure its introduction, does not ring with sincerity or bear the hallmark of that virtue of which it was said on the willow-fringed banks of the Euphrates in the long ago: "Great is truth and it will prevail."
The examination of other witnesses for the defendant, viz: Gaines and Connard, although the subject-matter of the testimony sought to be obtained from them was detailed to them by counsel for the defendant in his questions, elicited nothing more than that the plaintiff is one instance said that "he had the defendant employed by the year" and in the other that the plaintiff "had a lawyer by the year." Comment is unnecessary to demonstrate the utter lack of probative force of this testimony to establish the performance of legal services. There is a time-honored rule of equity that where the evidence is uncertain to establish a controverted fact, a court of review will persuasively regard the findings of the trial judge. No case has been submitted to our consideration which calls more insistently for the application of this rule than that at bar. After having read with discriminating care the testimony in this case we have examined the findings and judgment of the special judge who presided over the deliberations of the court during this hearing. It comprises a clear and comprehensive review of the entire testimony.
While this transcript is marked, as we think, with too much latitude in the admission of testimony — probably more permissible in equity cases than in others — the findings of the trial judge evince a well tempered judicial attitude and a proper estimate of the probative force of the testimony of the different witnesses. Seeing them, hearing them and probably knowing them personally, he was more able to correctly weigh their testimony than one who has access only to the printed record. Armed with these opportunities more than the ordinary reasons exist for our adherence to the persuasive rule of deference to the findings and conclusions of the trial judge. This is especially true where, as at bar, they accord with reason and do equity.
Thus moved we are of the opinion that the judgment of the trial court should be affirmed. *Page 694