Boyd v. Johnson

Patttson, J., delivered the opinion of the Court. The suit in this case was brought by the appellant against the appellee upon a written contract, signed by the appellee and others, which is as follows: “We, Marion M. Johnson, John F. Johnson and Myrtle Smith, being the children and granddaughter of Elijah Johnson, deceased, do hereby employ J. Oookman Boyd, Esquire, to act as our attorney for the' purpose of filing a caveat to the will of the said Elijah H. Johnson, deceased, and of prosecuting the same to a conclusion, either by trial in court or by settlement made by him with our approval, and we do hereby ³⁸⁷ agree to give him one-fourth of whatever amount may be recovered out of the estate of the said Elijah H. Johnson whether the same be as a result of suit or compromise. “As witness our hands this 21st day of June, nineteen hundred and twenty. “J. Frank Johnson. “Marian M. Johnson. “Myrtle M. Smith. “Geo. I. Young.” On the 22nd day of June, 1920, the appellant filed the caveat mentioned in the contract, and, as stated by him in his testimony, the appellee on several occasions thereafter visited his office to give him information which he thought w’ould be useful in the prosecution of the caveat; but, after a short time, the appellee reached the conclusion that he did not wish to proceed further with the caveat, so far as he was concerned, and asked the appellant to have his name stricken from the proceedings as a party thereto. This was not done, however, and later, some time in August, as stated by the appellant, the appellee wrote to him to the same effect.

On September the Oth, no action having been taken by the appellant upon the request of the appellee, Messrs. Haman, Cook, Chesnut and Markell wrote the appellant, saying: “We write on behalf of J. E. Johnson, a son, and Marion Johnson, a daughter, of Elijah H. Johnson. “These clients advise us that they wish the caveat proceedings in the orphans’ court in the above estate dismissed so far as they are concerned. We understand from them that while they originally were persuaded, or decided, to join in the proceedings, subsequent reflection has led them to the conclusion that their action in the first .place was impulsive and their deliberate judgment is that they do not wish to proceed with the case as parties to the caveat. “They further tell us that they have had some talks with you along this line which apparently have not yet resulted in a dismissal of the proceedings so far as they are concerned. ³⁸⁸ “They have now directed and instructed us to have the case dismissed so far as they are parties thereto. "We presume that you would prefer to do this, as we believe you filed the caveat for them in the first place.

They have given us instructions in writing in the matter so that we have no option except to call the matter to your attention and ask that their wishes be carried out. “We may add that we knew nothing of the matter in any way until they called upon us and asked us to take this action for them. If you would like to see their written instructions to us for the dismissal of this caveat case, so far as they are concerned, we shall be very happy to bring them to your office and show them to you. Of course, we shall be very glad to confer with you about the matter if you should wish to see us, but we do not understand that we have any discretion as to the dismissal of the case. “May we ask a reply at your early convenience advising us that you have filed the order» of dismissal, as otherwise we ourselves shall have to file it. “Yours very truly, “Haman, Cook, Ohesnut & Markell.” It would seem from the record that nothing' was heard from the appellant in response to this letter, and on September 14th thereafter the appellee, by letter, directed Messrs. Haman, Cook, Ohesnut and Markell to file an order dismissing the caveat so far as he was concerned, and the following order was filed by t-hem on September S17th: “Mr. Clerk: Please enter the above entitled caveat proceeding dismissed so far as John F. Johnson is concerned as one