#### S. H. NEWKIRK v. H. L. STEVENS, L. A. BEASLEY and C. D. WEEKS et al.

(Filed 4 May, 1910.)

1. Issues — Facts Admitted.

When some of the issues tendered embrace facts admitted by the parties and the others of them are fully covered by the issues submitted to the jury by the judge, it is not error for him to refuse the issues tendered.

2. Attorney and Client — Termination of Relationship.

The termination of the relationship of attorney and client de- . pends upon the facts and circumstances and nature of the attorney’s employment and the retainer he had received, and as a general rule, and in the absence of special circumstances to the contrary, the authority ceases with the termination of the suit for which his services are engaged.

3. Same — Subsequent Dealings.

The defendant having acquired an undivided one-half interest in the locus in quo as a contingent fee in successfully representing the plaintiff to final judgment in an action brought against him involving his title, may then deal with the plaintiff in any transaction respecting the sale of land to a third person, for the .relationship of attorney and client ceased upon the rendition of the said judgment, and plaintiff is not entitled to any of defendant’s personal profits in the sale of his own interests by reason of the former relationship.

4. Contracts to Convey Lands — Title in Trust — Parol Evidence.

The plaintiff and defendant held an undivided interest in the locus m quo. Plaintiff agreed by parol to sell his part, and conveyed it to defendant to be held by him until his part of the purchase price had been paid, upon the payment of which defendant was to convey to the purchaser: Held, that evidence of the parol agreement of plaintiff to sell the land was not within the statute of frauds, and that it was competent, especially in this case, upon the allegations of defendant’s fraud.

5. Issues — Unnecessary—Fraud—Issues Found.

The jury having found in this case that the plaintiff had himself previously contracted to convey his interest in certain lands held in common with defendant, at a certain price, and that the defendant had not agreed to divide the proceeds he had received from the sale of the land at an advanced price and alleged to have been in fraud of plaintiff’s rights under an agreement with him, an issue as to the amount defendant had received for his own interest is immaterial, and it was not error for the lower court to-refuse to submit it to the jury.

Appeal from- W. B. Allen, J., at February Term, 1909, of Duplin.

The facts are stated in tlie opinion of tbe Court.

*499 Rountree & Carr and Kenan & Herring for plaintiff.

Aycock & Winston for defendant.

Walker, J.

Tbis action was brought by the plaintiff against the defendant to recover what he alleges to be his share of the proceeds of the sale of certain timber upon the lands described in the complaint. The plaintiff, Swan Hill Newkirk, owned a life estate in the land, and the remaindermen brought, a suit against him to declare the said estate forfeited by reason of waste alleged to-have bafen committed by the said Newkirk. The case was tried, and Newkirk, in 1903, recovered a judgment, in which the jury found, and the court declared, that the estate had not been forfeited,, and further adjudged that the plaintiffs pay the costs of the action. The plaintiff in this action alleges that he employed the law firm of Stevens, Beasley & Weeks, who are the defendants in this action, to appear for him in the suit brought by the remaindermen, to which we have already referred, and that he and the defendants entered into a written agreement, by which the defendants were to receive one-half of the land recovered by him in the action, and if he was cast in the suit, that they would not receive anything for their services as attorneys. The execution of this contract was admitted by the defendants. The plaintiff further alleged that in 1906, while the defendants were still his attorneys, he executed to the defendant Stevens a deed for his interest in the said timber, for a stated consideration of $800, but that no consideration actually passed to the plaintiff, and that the said deed was made upon an agreement between the plaintiff and the said Stevens and one Henry E. Shaw, who represented his wife, Virginia D. Shaw, in the said transaction, that the timber should be sold, and each of the parties, that is, the defendant, IT. L. Stevens, and Virginia D. Shaw, should receive one-third of the proceeds of sale. The plaintiff further alleges that the said Stevens and Shaw, at the time the deed was executed by the plaintiff to the said Stevens, had actually agreed to sell the timber to Caldwell Hardy, who was acting as trustee for the Carolina Timber Company, for the sum of $6,000, and that 1hey fraudulently concealed the fact from him and represented that the land would be sold for $2,400, and by the agreement between them, that he would receive, as his share of the proceeds, the sum of $800.

The defendants in their answer deny the allegations of the complaint and the fraudulent representation and concealment, and averred the truth to be that the plaintiff, prior to the execution of the deed to Stevens for the recited consideration of $800, had *500agreed to sell bis interest in tbe timber to Henry E. Shaw, acting in behalf of his wife, Virginia D. Shaw, who then owned an interest in the land, and that the deed was made to H. L. Stevens, with the express understanding and agreement that he would convey the land to H. E. Shaw, or his wife, when the purchase money should be paid by the latter, that is, the sum of $800. That no offer of $6,000 for timber on the land had been made by any one until after the plaintiff executed the deed to Stevens for the consideration of $800, on 12 February, 1906, and that the timber was purchased after that time by Caldwell Hardy, as agent for the Carolina Timber Company, and that there was no agreement as. to the division of the proceeds of sale and no fraudulent. representation by the defendant H. L. Stevens, or H. E. Shaw. That the deed was executed by the plaintiff to the defendant H. L. Stevens in order that he might hold the legal title until the purchase money was paid by H. E. Shaw, as the plaintiff was unwilling to make the title directly to H. E. Shaw, as agent of his wife, until the purchase money had been paid.

The plaintiff tendered certain issues, nine in all, which the court refused to submit to the jury, and instead thereof submitted the following:

1. Did defendant H. L. Stevens agree with plaintiff to pay one-third of the amount for which the timber was sold? Answer: No.

2. Did H. E. Shaw agree with the plaintiff to pay him one-third of the amount for which the timber was sold ? Answer: No.

3. Did the plaintiff sell his interest in the timber for $800 to II. E. Shaw? Answer: Yes.

4. If so, did plaintiff execute the deed to H. L. Stevens with instructions to ponvey.the timber to said Shaw upon the payment-of $800? Answer: Yes.

5. Did defendant H. L. Stevens fraudulently represent to the plaintiff that the purchase price of the timber was $2,400, and fraudulently conceal the fact that the purchase price of the timber was $6,000, and thereby induce the plaintiff to execute his deed for said timber ?

• The plaintiff objected to the submission of the third issue, because there was no written contract between plaintiff and H. E. Shaw, and there is nothing in the pleadings which raised such an issue. The jury answered the fifth issue, No, but erased the answer and returned a verdict only upon the first four issues, and the court thereupon instructed the jury that it was not necessary to answer the fifth issue, as the plaintiff did *501not, allege in Ms complaint tbat tbe deed bad been procured fraudulently, but he sued for tbe recovery of bis shai^ of tbe proceeds of sale, wbicb bad been actually received by H. L. Stevens and H. E. Sbaw from tbe.Carolina Timber Company. Tbe court ruled tbat there were only two allegations made by tbe plaintiff: 1. Tbat tbe defendants bad agreed to pay him one-third of tbe amount received from tbe sale of tbe timber. 2. Tbat H. L. Stevens was Ms attorney, and tbat be beld any amount tbat was received from tbe proceeds of sale for tbe plaintiff. Tbe court beld tbat tbe fifth issue was immaterial or irrelevant to tbe controversy, tbe jury having found tbat tbe plaintiff bad sold tbe land to H. E. Sbaw, acting in behalf of bis wife, before the deed of 12 February, 1906, was executed to tbe defendant II. L. Stevens. Tbe plaintiff duly excepted to tbe ruling of tbe court in regard to the fifth issue, and to tbe refusal of tbe court to submit tbe issues tendered by him.

¥e do not think tbe court committed any error in refusing to submit tbe issues tendered by tbe plaintiff. Several of them embraced facts wbicb bad been admitted by tbe parties, and tbe others were fully covered by tbe issues wbicb tbe court after-wards submitted to tbe jury and wbicb virtually disposed of tbe real matters in controversy between tbe parties. We think that tbe ruling of the court as to tbe fifth issue was correct, for tbe reason wbicb we will hereafter state.

Tbe first ground upon wbicb tbe plaintiff rests bis case, namely, tbat be is entitled to recover one-half of tbe proceeds of tbe sale of tbe land, wbicb were received by H. L. Stevens, because tbe said Stevens was, at tbe time, bis attorney, appears to us to be untenable. It must be true tbat tbe relation of attorney and client in a case like this one does not last forever. It ends at some time, and tbe time tbat the relation terminates in any particular ease will depend upon tbe facts and circumstances and tbe nature of tbe employment or retainer. In tbe absence of special circumstances, “the employment of an attorney continues as long as tbe suit or business upon wbicb be is engaged is pending, and ordinarily comes to an end with tbe completion of tbe special task for wbicb be was employed. At common law, tbe obtaining of a final judgment was such a termination of a suit as brought tbe relation to a close.” 4 Oyc., 952.

In Treasurer v. McDonald, 1 Hill (S. C.), 184 (26 Am. Dec., 161), it was beld tbat, “tbe authority of an attorney, when considered with a view to tbe duties be is required to perform; is confined to tbe conduct and management of Ms client’s case, in wbicb bis skill and learning' only are put in requisition, and tbe right to receive bis client’s money with special authority is *502an interpolation, tire policy of which may well be questioped, howevqju convenient it may be in practice, and ought not to be extended.” So in Dangerfield v. Thurston, 8 Martin, N. S. (La.), 119, it is held to be a general rule that authority of an attorney ceases with the termination of a suit. See, also, Mordecai v. Charleston, 8 S. C., 100; Hillegass v. Bender, 78 Ind., 225; Berthold v. Fox, 21 Minn., 51; Jackson v. Bartlett, 8 Johnson (N. Y.), 281; Kellogg v. Gilbert, 10 Johnson, 221; Kamm v. Stark, 14 Fed. Cases, No. 7604.

In Branch v. Walker, 92 N. C., 90, this Court held that the relation of an attorney, with respect to the suit in which he is employed to prosecute or defend, “does not cease in any case until the judgment of the court, where it is pending, is consummated, that is, made permanently effectual for its purpose, as contemplated by law,” citing Walton v. Sugg, 61 N. C., 98, and Rogers v. McKinsey, 81 N. C., 164. It appears in the case at bar, that a judgment for the plaintiff was entered in the suit against him to forfeit his life estate for waste alleged to have been committed by him as early as 1903. This was a final judgment and fully established the title to the life estate in him, the defendant having paid the costs, and 'the judgment having been “consummated and made permanently effectual for its purpose, as contemplated by law,” the relation of attorney and client was terminated in 1906. "We may safely assert that, in 1906, when the deed was made to H. L. Stevens by the plaintiff, and three years after the judgment hád been entered in the suit against the plaintiff in this action, there was no relation subsisting between the plaintiff and H. L. Stevens as his attorney in this action, which made it unconscionable for II. L. Stevens to deal with the plaintiff in any transaction respecting the land, or which was calculated to give II. L. Stevens an undue influence or advantage over the plaintiff with respect to any such dealing. Besides, it appears by the verdict of the jury that the plaintiff had previously sold the land to H. E. Shaw, and the legal title was vested in Stevens for the purpose of securing the purchase money.

It is contended, though, that the agreement of the plaintiff to sell to H. E. Shaw not being in writing, was, for that reason, void, but this contention is fully met by the case of Sykes v. Boone, 132 N. C., 199, and the authorities therein cited. That case has been approved by this Court several times since it was decided. Avery v. Stewart, 136 N. C., 441; Davis v. Kerr, 141 N. C., 11; Chappell v. White, 146 N. C., 571; Gaylord v. Gaylord, 150 N. C., 222. "We are of the opinion, therefore, that the testimony tending to show the sale by the plaintiff in this *503case to H. E. Sbaw, for bis wife, was properly submitted to tbe jury for tbeir consideration. It would seem, at least, to bave been competent witb respect to tbe allegation of tbe plaintiff tbat H. E. Sbaw and tbe defendant II. L. Stevens had made a fraudulent representation to tbe plaintiff and bad agreed to divide tbe proceeds of tbe sale of tbe land equally, when made.

Tbe fifth issue, which related to tbe fraudulent representation of H. L. Stevens as to tbe amount which bad actually been received for tbe timber or agreed to be paid, became immaterial when tbe jury found, by tbeir verdict, not only tbat tbe plaintiff bad sold bis interest in tbe timber for $800 to H. E. Sbaw, but that Stevens and Sbaw bad not agreed with him to divide tbe proceeds of tbe sale, as alleged in tbe complaint. Besides, tbe fifth issue was not presented by tbe pleadings, as it is not alleged tbat tbe deed to H. L. Stevens by tbe plaintiff was procured by any false representation, and tbe plaintiff seeks only to recover bis share of tbe actual proceeds of tbe sale. What we bave said disposes of tbe defendant’s prayers for instruction, and tbe ruling of tbe court below, upon tbe verdict as returned by tbe jury, and which embraced all tbe material issues between tbe parties, was correct.

No error!