Rhodes v. Smith
Rhodes v. Smith
Opinion of the Court
delivered the opinion of the court.
Anna Lee Smith, W. Lem Smith, Miss Ethel Smith, of Holmes county, Miss., and Mrs. Ella M. Chisolm, of Yazoo county, Miss., filed a bill in the chancery court of Yazoo county, Miss;, to cancel certain contracts or powers of attorney held by C. F. Rhodes, an attorney of Yazoo City, Miss., alleging fraud in the procurement of said contracts, and alleging incompetency and mis judgment in the conduct of certain litigation in the state of Georgia. It is alleged that James M. Smith, of Oglethorpe county, Ga., died in said county on the 1.1th day of December, 1915, leaving no direct descendants, and no father, mother, brother, or sister, but left certain descendants of three half-brothers of ¡whom eight of them, the complainants in this cause, were residents of the state of Mississippi, and each of the said eight heirs was entitled to a one-thirty-sixth interest in the estate of the said' Smith. James M. Smith left an estate of between two million dollars and three million dollars — alleged in the bill of complainant and admitted in the answer to be about three million dollars. When it was learned in Mississippi that James M. Smith had died and that the complainants and other Mississippi heirs were entitled to a portion of his estate, some of the Mississippi heirs living in Holmes county employed E. F. Noel to go to Georgia and look after their interests. There was no distinct contract as to the amount of fee to be paid, and complainant Mrs. Ella M. Chisolm had some kind of an agreement with Mr. Noel to look after her interest in the matter, but no distinct agreement was made as to the amount of the fee; it be
“State of Mississippi, Yazoo County: Be it known that I, Mrs. Ella Chisolm, of the county of Yazoo, state of Mississippi, for and in consideration of one hundred dollars cash in hand paid me this day, receipt of which is hereby acknowledged, and for other good and valuable consideration, and for services rendered and to be rendered, do hereby appoint and employ J. T. Duggan, of Yazoo county, Miss., my agent and attorney in fact to represent me in all matters pertaining to the administration of the estate of James M. Smith, deceased, of Oglethorpe county,. Ga., in which I might 'have any interest as heir, distributee, or otherwise, and do hereby consent for said Duggan to employ an attorney, and to do any and all things in his judgment necessary to protect my rights and interest in said estate the same as I might do in my own proper person, and consent that process issued touching said estate may be served on said J. T. Duggan; and that said Duggan for his services and that of his attorney, employed by him herein, is to receive ten per cent, of whatever sum or sums I might be entitled to out of said estate, which is hereby
“Witness my signature this the 11th day of January, A. D. 1916.
“ [Signed] .Mrs. Ella Chisolm.
“John Chisolm.
“State of Mississippi, Yazoo County: Personally appeared before me, J. T. Blount, justice of the peace, beat 3, Yazoo county, Miss., the within named Mrs. Ella Chisolm and John Chisolm, her husband, who acknowledge that they signed and delivered the foregoing power of attorney and agency on the day and year therein mentioned.
“Given under my hand and seal of my office this the 11th day of January, 1916.
“J. T. Blount, Justice of the Peace.
“Beat 3, Yazoo County, Miss.”
After the execution of this power of attorney Duggan employed C. F. Rhodes, the appellant in this case, at and for a fee of five per cent., or one-half of the ten per cent, contract made by Mrs. Chisolm and Duggan. This contract is made Exhibit B¡ to the bill, and sets out in full the contract between Mrs. Chisolm and Duggan and then recites:
“Now, therefore, be it known that I, J. T. Duggan, do employ and appoint C. F. Rhodes, of Yazoo county, Miss., my agent and attorney in fact in said matter to do and perform all things, soever concerning the interest of the said Mrs. Ella Chisolm in the estate of the said James M. Smith, deceased, of Oglethorpe county, Ga., as I might be empowered to do under and by virtue, of said authority. And for and in consideration of ten dollars cash in hand paid me this day, receipt of which is hereby acknowledged, and for services rendered and to be rendered by said O. F. Rhodes as my' agent and attorney in fact, I hereby assign, convey, and warrant to him one-half of the
This contract was signed by J. T. Duggan and acknowledged before J. T. Blount, a justice of Yazoo county, Miss. This contract was then presented to Mrs. Ella Chisolm, and she ratified the same in the following words, to wit:
“State of Mississippi, County of Yazoo. Know all men by these presents, that I, Ella Marks Chisolm, of Yazoo county, and state of Mississippi, have chosen, constituted, and appointed J. T. Duggan, of Yazoo City, Yazoo county, state of Mississippi, my agent and attorney in fact, and C. F. Rhodes of Yazoo City, Yazoo county, state of Mississippi, my attorney, and do by 'these presents choose, constitute, and appoint the said parties my sole and lawful agent and attorney a.t law and in fact, for me and in my name to sue, settle, or compromise any and all claims, right, or interest which I may now have or hearafter have, as heir at law, legatee, distributee, or otherwise, on account or growing out of the estate of the late James M.-Smith, deceased, of Oglethorpe county, Gra., and said agent and attorney are hereby lawfully authorized and empowered to receive and receipt for any and all money that may be due me, or to which I may be entitled, on account of said claim, right, or interest, as an heir at law, legatee, distributee, or otherwise, and to sign my name to any and all receipts, settlements, deeds, discharges, and acquittances, and any and all other contracts, agreements, or papers of whatever nature that may be necessary in the premises or collaterally thereto, and to do and perform any and all other acts or things that said agent and attorney may deem necessary and proper in the premises as they approve of and do for themselves, thereby binding me as fully and completely as if I were present in person and acting. And I
“In witness whereof, I have hereto set my hand and affixed my seal this the 20th day of March, 1916.
“Ella Masks Chisolm. [L. S.]
“Signed, sealed, and delivered in the presence of: Witnesses, Mr. R. A. Carson.
“Sworn to and subscribed before me this the 20th day of March, 1916. S. E. Montgomery, Justice of the Peace and Ex Officio Notary Public.”
After this employment of Rhodes he went to the state of Georgia and there met Miss Ethel Smith, one of the complainants, and she executed the following contract:
“State of Georgia,'Fulton County.
“Know all men by these presents, that Ethel Smith, of Shelby county, and state of Tennessee, have chosen, constituted, and appointed W. Lem Smith of Lexington, Holmes county, state of Mississippi, my agent, and C. P. Rhodes, of Yazoo county, state of Mississippi, my attorney, and do by these presents choose, constitute, and appoint the said parties my sole and lawful agent and attorney in the law and in fact, for me and in my name to sue, settle, or compromise any and all claims, right, or interest which I may now have or hereafter have, as heir at law, legatee, dis
“In witness whereof, I have hereto set my hand and affixed my seal this 11th day of March, 1916.
Ethel Smith. [L. S.].”
Similar contracts were executed by Anna Lee Smith and W. Lem Smith to C. F. Rhodes. When the attorneys representing the Mississippi heirs in' this state went to Georgia, they found that certain. persons there had been appointed temporary administra
The line of heirs known as the Zadoc Smith heirs, of whom the appellees in this case are a part, seem to have the advantage in the fact that some of them were residents of Georgia in touch with local situation and able to make proof of their heirship. There were certain other claimants claiming that the deceased Smith descended from a different ancestor than
Rhodes filed a hill on behalf of Mrs. Ella Chisolm, under his power of attorney, in the federal court, and returned to Mississippi and took up with other heirs the question of putting them in the federal court in the same way that Mrs. Chisolm had intervened through him. A. conference was called of the Mississippi heirs other than Mrs. Chisolm at Lexington, Miss., to discuss the matter. Governor Noel and Mr. Rhodes met the heirs and they discussed the matter at some length; Rhodes contending that they should go into federal court, and Noel contending that they should remain in the state court and try to defeat the federal jurisdiction. • Noel and Rhodes left the place of meeting together, without having the heirs reach any agreement about the matter. Lem Smith was with Rhodes and was insisting that the federal court was the proper forum under the circumstances developed in Georgia. After Noel left, Lem Smith and Rhodes and the other Mississippi heirs returned to the place where the heirs were assembled and procured contracts authorizing Rhodes to. place all Mississippi heirs in federal .court; the instrument reciting- that they approved and ratified Rhodes’ action in going to the federal court and giving him full authority to represent them and put them in that court. The acknowledgments to these contracts were taken before J. H. Fuqua, chancery clerk of Holmes county, and were taken part about dark and a part shortly after that time. The appellees contended that
“I will reach Lexington to-morrow night. Mrs, Jordan says get Mrs. Chisolm and bring her here at once if possible. Rhodes is a traitor, she believes, and will leave to-night. Get Marks by Sunday so I can see you all then. Best for you all attend Augusta court and see who are lined up with your enemies.”
Ethel Smith telegraphed Anna Lee Smith at Lexington as follows:
“See Lem and tell him to come to Athens on first' train. He must get here by Saturday or sooner if he can. Wire me immediately when he will leave.”
Lem telegraphed Ethel as follows:
“Do nothing. Everything all right. . We leave here April 3d.”
And again:
“Wait until I get there, may be a week. Lem.”
Numerous other telegrams and letters appear in the record, showing that some of the heirs were dis
“Mrs. Chisolm here. Affidavit will be made and filed to-morrow. All will be in Atlanta by Friday. Saw Duggan and Lem after I left you. Both repudiated Rhodes, now disavowed by all completely. Monroe Smith, if possible, wishes to swear to pleadings, and not come. Write as to that.”
When the federal court met, Governor Noel filed a proceeding challenging Rhodes’ right to represent the Mississippi heirs and demanding that he be allowed complete control of the litigation in behalf of the
The record in this case is extremely prolix, consisting of one thousand five hundred and ninety pages, and it has been elaborately briefed, and we deem it unnecessary, in view of our conclusion, to review all the facts and circumstances in evidence. Rhodes filed a cross-bill in the court below asking that his contracts be upheld and enforced. The chancellor sustained the bill of complaint, except as to Lem Smith, and decreed against Lem Smith for two thousand five hundred dollars on this contract, from which judgment Lem Smith prosecutes a cross-appeal. It appears from a painstaking consideration of the evidence in this record that the parties signed the contracts held by Rhodes and acknowledged them with full knowlege of their contents: also that they signed, with knowledge of their contents, papers authorizing the intervention in the federal court. We have reached the conclusion that the evidence wholly fails to sustain the allegations of the bill, and that there was no fraud such as would authorize the cancellation of these contracts. The things relied on to impeach the contracts afie very largely antecedent verbal statements and claims of agreements wholly inconsistent with and contradictory to the terms of the written contract. It appears to our satisfaction that the dissatisfaction with Rhodes conduct by the appellees in this suit was inspired by the temporary administrators and their
Reluctant as we are to reverse a chancellor upon facts, we feel that it is our duty to do so in this case and enter a judgment for the cross-appellant as against Mrs. Chisolm, Anna Lee Smith, and Ethel Smith in, the same amount as was adjudged against Lem Smith on the main facts in the record in the court below, which, we think, upon the allegations and admissions of the bill and answer are reasonable and warrant it. Therefore to review the evidence would be a tiresome and unprofitable proceeding, and would be of no general interest. The judgment is reversed on direct appeal, and judgment entered in favor of Rhodes for two thousand and five hundred dollars against each of the appellees Ethel Smith, Mrs. Ella
Reversed on direct and affirmed on cross-appeal.
Reversed.
Affirmed.
Reference
- Status
- Published
- Syllabus
- Principal and Agent. Power of attorney. Fraud. Under the facts in this case which, was a suit to cancel a power of attorney and contract, the court held that the chancellor was not justified by the evidence in holding that such power of attorney and contract was fraudulently obtained or that defendant was guilty of fraud in the exercise of such power.