Bolles v. O'Brien , 63 Fla. 354 ( 1912 )

On Rehearing.

Per Curiam.

— Mr. Bolles in explaining that he did not understandingly sign the agreement in question, testified that previous to the signing he talked with Mr. O’Brien about a one-fourth interest O’Brien was to take and pay for in lands with Bolles and two others, and that the proposition was abandoned as to the two other persons, “but had not been called off in relation to Mr. O’Brien; and this was a continuation of that.” Bolles also testified that the instrument was kept in a safe place and when more than a year after the signing someone mentioned to him the existence of an agreement between Bolles and O’Brien and its probable future effect, he “got the agrément out of the safety vault and looked at it, and was much surprised as to its nature and contents, and I made up my mind I had better speak to Mr. O’Brien about it at the first opportunity I had. In a few days he came in, and when he came in I did speak to him about it, and that was the first time my attention was called as to the character and language of the agreement.”

There are apparent inconsistencies in the evidence on both sides which is not surprising in a case of this character, but it is clear that Mr. O’Brien, the attorney, has not met the burden cast upon him by law, of establishing .by convincing evidence that Mr. Bolles, the client, acted with full warning and perfect knowledge of the consequences of his act, or that the agreement purporting to confer a property right upon O’Brien from his client, was fair and based upon full and adequate consideration. Because of the relation of attorney and client as to the subject matter and of the circumstances under which the instrument was signed, it was not binding on Bolles, the client, when he signed it; and as its terms were not thereafter ratified or confirmed or in any way put in operation, the conduct and statements of the parties subsequent to the signing of the instrument are immaterial and do not constitute a contract relation between the parties. See Keenan v. Scott, 61 W. Va. 137; 61 S. E. 806; Boyle v. Read, 138 Ill. App. 163; Crocheron v. Savage, 75 N. J. Eqr. 589, 73 Atl. Rep. 33; 23 L. R. A. (N.S.) 679;18 Ann. Cas. p. 123 notes.

Eehearing denied.

Whitfield, C. J., and Taylor and Hocker, J. J., concur. Shackleford and" Cockrell, J. J., dissent.