Simler v. Conner

PETITIONER:Simler
RESPONDENT:Conner
LOCATION:Beaumont Mills

DOCKET NO.: 59
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 372 US 221 (1963)
ARGUED: Jan 09, 1963 / Jan 10, 1963
DECIDED: Feb 18, 1963

Facts of the case

Question

  • Oral Argument – January 10, 1963
  • Audio Transcription for Oral Argument – January 10, 1963 in Simler v. Conner

    Audio Transcription for Oral Argument – January 09, 1963 in Simler v. Conner

    Hugo L. Black:

    Number 59, A. J. Simler, Petitioner, against Leslie E. Conner.

    John B. Ogden:

    If Your Honor please — pardon me, John B. Odgen of Oklahoma City for the petitioner and in this case presents a constitutional question as to whether or not we are entitled to a jury trial, but even a more important question is whether or not when you go in the federal court, the state law and the state constitution applies in determining whether you’re entitled to a jury trial or whether you use the law of the state of the forum where the cause of action arose.

    In this case, the Circuit Court of the Tenth Circuit, twice in this same particular case, now I might say for the benefit of the Court, that this case has now been to the Circuit Court of Appeals three times and in the Supreme Court of United States once, but has never been tried, so it is rather unusual.

    This is an action for declaratory judgment brought by Mr. Simler who was a former client of Mr. Conner.

    He was a plaintiff for United States Court in Okalahoma City.

    Mr. Conner of course was the defendant.

    The case was originally assigned to Judge Wallace, now deceased.

    He held we were entitled to a jury trial.

    I represent Mr. Simler and we had asked him a declaratory judgment action for the court to tell us whether we owed Mr. Conner anymore money for lawyer fees or not.

    We had paid him $24,000.

    We had paid attorney’s — paid me $7500 to assist Mr. Conner, had paid Mr. Grigsby, an associate of Mr. Conner’s who had a 28% interest in Mr. Conner’s fee, $12,800.

    Mr. Simler had paid to the opposing lawyers under the orders of the County Court of Oklahoma County, Oklahoma $46,000.

    So he had spent $90,300 for lawyer fees.

    William O. Douglas:

    I suppose that might be of interest to the jury but —

    John B. Ogden:

    No, the reason I said that, if the Court please, to show that the reason was necessary to find our whether we had paid out enough fees.

    I thought the Court would probably like to know how much we’d paid out to see that we did have a real reason to go into court because we didn’t know whether we’d paid sufficient fees or not.

    So in the suit which was declaratory judgment action, after Judge Wallace transferred the case over during his lifetime to Judge Chandler.

    So upon the first hearing before Judge Chandler, Judge Chandler said, “Well, I will not give you a jury trial.”

    Now, we had demanded a jury trial on a reply in our complaint, and on the response later for a motion for summary judgment.

    So he said, “I won’t give a jury trial.”

    So then, in their brief, we went to Denver to the Court of Appeals to file an application for a writ of mandamus to require him to give to the petitioner, Mr. Simler, a jury trial. We have briefed it and argued it in Denver and then the Court of Appeals made an order and ordered Judge Chandler to give us a jury trial.

    Then, when we came back there before Judge Chandler after he had received that order, he said, “Well, I won’t have any kind of trial, I don’t know he used the word, he said I’ll just sustain a motion for summary judgment and there won’t be any trial to it.”

    So, it will be like in difference; jury, non-jury.

    So that is what he did in the court.

    We made — we were forced to make bond then and took the case back up the Court of Appeals.

    Then it went back and briefed that case and argued out there in Denver and then the Court of Appeals reversed Judge Chandler the second time if you call the first one a reversal, and they told Judge Chandler to give us a jury trial and they set aside his decree, sustaining the — his judgment, sustaining the motion for summary judgment.

    Potter Stewart:

    Is that opinion in the record here?

    John B. Ogden:

    Yes sir, if Your Honor please, that opinion is referred to in the record and I can give the Court all of those opinions, which I will in just a moment, I have them set out right here and —

    Potter Stewart:

    I couldn’t seem to find it in the —

    John B. Ogden:

    Yes sir.

    Potter Stewart:

    — record.

    John B. Ogden:

    Well, if the Court please, the opinions of the Circuit Court are printed — let’s see, the first opinion — let’s see, the Circuit Court reversed — it was 282 F.2d and I have found — or 282 F.2d at page 382, that was in 1960.

    Now then — then after the court reversed him and set aside the summary judgment and ordered to give us a jury trial, Mr. Conner, the respondent here, filed a petition for certiorari in this Court which was by this Court denied.

    Now then, after that was denied, and while it was pending on petition for a rehearing, there was an opinion came out of the Supreme Court of Oklahoma known as Southard versus MacDonald and it’s cited at 360.

    Well, I have the citation which I won’t look at — 360 P.2d 940.

    In that case, the Supreme Court of Oklahoma held that a person was not entitled to a jury trial because it give him some bland to a lawyer, Mr. MacDonald overdue rent for a lawyer fee and then four years, seven months, and 10 days later, there was a petition suit filed, and in that petition suit there in Oklahoma, why — these parties who had made the deed for the lawyer, four years and seven months before, asked the court to cancel the deed and said it was given for a lawyer fee and they’d made a contract for 40%, then when the case closed while carrying out their contract, they made a deed for the lawyer, 40% of that, four years before.

    Now then, the Supreme Court simply said in that case, that that was not a jury case because it’s a suit to cancel a deed.

    Now, if the Court will pardon me for being personal, I think about 1923 or maybe 1925, I tried a case as a lawyer called Tillman versus [Inaudible] mentioned in this brief and in some of these opinions.

    And I didn’t know, I thought it’s entitled to cancel a deed to a lawyer, the name of Tillman on account of the facts, certain facts therein laid.

    Now, we tried that by jury.

    I didn’t know any better and the judge didn’t and the lawyer didn’t, so we just tried out for a jury, and I wanted — they appealed to the Supreme Court, they complained about the instructions.

    The Supreme Court said, “Well, that don’t make any difference, it’s not a jury case anyway.”

    Any suit to cancel a deed in Oklahoma is an equity matter, always has been.

    That was announced 25 or 30 years ago.

    So, I mean it’s more than that actually.

    There’s never been any question.

    Now, in this case, this Court when they have made this application here for rehearing and said it just — the opinion just came down which changed the law in Oklahoma.

    They were referring to this opinion where the Supreme Court said he wasn’t entitled to a jury to cancel a deed and that you’ve given somebody four or five years before any length of time, before that was an equity matter.

    Well, this Court, I’m just guessing is this of course, but I’m just assuming that this Court just didn’t look into it very carefully, and said, “Well, we have just remand this back out here to the Circuit Court and ask them to look at it.”

    Now, that’s the way I read the order.

    I’ve got it right here, I mean, it wasn’t an opinion, just an order from this Court.

    So then, we all went back to Denver again —

    [Inaudible] so far in your action.

    John B. Ogden:

    I asked for the court in the declaratory judgment action —

    Yes.

    John B. Ogden:

    — to determine how much lawyer fee we owed Mr. Conner if any.

    Whether it was (Voice Overlap) —

    Didn’t you — didn’t you have a contract with Mr. Conner for a contingent fee?

    John B. Ogden:

    Yes, sir, we did, I’ll get —

    And you claim that the contingent fee contract was induced by a fraud or was —

    John B. Ogden:

    Yes.

    — void as a matter of law?

    John B. Ogden:

    That’s correct.

    If Your Honor please, I will call that — if you would pardon me just to have a second, I will only get to that because I have that —

    Alright.

    John B. Ogden:

    Just a certain way in my mind here and I think I can make that very clear.

    Now — so, when the Circuit Court of Appeals has got — back out and that was the reason I appeared to this Court, directed the Circuit Court to look at the case again.

    So, we went out then, we briefed the cases, the Circuit Court argued again.

    So then the Circuit Court, for the third time, held that we were not entitled to a jury, that we were entitled to have out case tried without a jury and that case is found in 295 F.2d at page 534.

    Now, then if the Court please, that gives you — and then when the — when the Circuit Court of Appeals ruled that we were not entitled in this case to a jury trial, then we filed, Mr. Simler filed a petition for certiorari in this Court and this Court granted and that’s what we argue today.

    So this is the second time the case has been in the Supreme Court of United States, and the third time it has been out in Denver, and as I say, it’s not yet been tried.

    Now, factually, I want to call to the Court’s attention if I may the facts in this case and I’ll support them for the record.

    I’m just going to talk about the facts as of course contained in the record.

    Now then, if the Court please; on the 13th day, which is the 13th day of July 1952, Mrs. Fletcher died, that was Mr. Simler’s sister and he was the only heir at law.

    He lives in North Little Rock.

    On the 18th day, she made a will in which she in effect disinherited him.

    She only gave him a dollar.

    And so after she made this will, then on the — she willed the bulk of her property to the Sisters of St. Francis which operates St. Anthony’s Hospital which incidentally is the largest hospital in Oklahoma City and Yoke, I guess.

    Well, the Sisters of St. Francis is a Catholic organization and it is a corporation, a foreign corporation organized under the laws of some other state.

    Now, at that time, under the Constitution of the State of Oklahoma and the laws of the State of Oklahoma, a foreign corporation, in fact, no corporation could hold land outside of the city or town which was not necessary for it — to hold in order to carryout the purposes of which it was organized.

    So consequently, a hospital couldn’t own a farm.

    Now then, these — this will gave the Sister of St. Francis and others some 15 or maybe now, different amounts of money and Mrs. Fletcher, when she died, she had — we’ll just say, $85,000 or $90,000, maybe $100,000 in bonds and money and then she had real estate in Oklahoma City which of course she could will under the constitutional provisions of the Sister of St. Francis.

    But she couldn’t will the farmlands, anything outside of the city or town, then [Inaudible] and just — and different other things that she had.

    Well, everybody of course could take all that, but now, then on the — on the 13th — no, the 18th day of July 1952, Mr. Simler went to Mr. Conner’s office and Mr. Conner met him, they went up to his office.

    And Mr. Sim — Mr. Conner drew up a statement, it’s in the record here, at page, as I remember 23 — wait just a second, I’m sure it’s 23 — 23, 24 and 25, I believe.

    Yes, on the record, if Your Honor please, at 23, 24, and 25.

    Now, we’ll take a little time to read this for the reason I think this very important in determining whether we are entitled to a jury trial in this case.

    I’m reading from page 23.

    Now, this is a letter which Mr. Conner, the lawyer, drew up on July the 18th, 1952, at the time Mr. Simler employed him.

    If you’ll notice there, without me reading it in detail, this confirms our employment of yourself in law firm to represent us in a matter of Birdie Fletcher deceased now pending, and I’ll skip along.

    John B. Ogden:

    Now, we agreed to pay all of the witness fees, court costs, furnish all bonds, purchased copy of the record, from all and so forth, advanced to pay all the necessary bills and so forth.

    We understand this will run about a $1000.

    We also agree this is the important point, to pay you and your firm a reasonable attorney’s fee for the services rendered and to be rendered, in this case, in the county court and if necessary, in the District Court, and if necessary in the Supreme Court of the State of Oklahoma, which fee maybe set by the county court or any other court if the matter is successful either by a trial or judgment or a compromise.

    If the matter is not won, a compromise is set and you’re not to charge us fee.

    Now, that is the first letter.

    Now, my contention if Your Honor please is before this Court, that was full and complete contract, you could make one any fuller or any better.

    They said I’ll pay you a reasonable fee.

    Now, as far as — if the Court please, if he gets anything more than what’s contained in that letter, he’s getting something — he’s getting something he’s not entitled to.

    We want to pay him a reasonable fee.

    It wouldn’t be the amount of a dime for a new house, have to desire to.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes, that’s right.

    So I was just saying that this letter here — the reason I’m saying that, if the Your Honor please, is simply this.

    That this first letter here, I say is complete and the rest of it, if you — if it — it would take away a jury trial, it would be a surplus, and there wouldn’t be of any benefit anyway.

    So under this letter we’re clearly entitled a jury trial.

    That’s the reason I mentioned that because it says that he’s entitled to a reasonable fee, that we’re not — couldn’t agree on a reasonable fee, why then — we’d left the court decide it.

    So that letter is full and complete, so there is no reason for Mr. Conner to make any other contract with Mr. Simpler because he has one that will protect him, just full and complete as it can be.

    Now then if Your Honor please, on the 25th day of September 1952, we allege and this is before the Court in the record.

    It’s in my — it’s in my reply and I believe also in the complaint.

    I won’t call for your attention because it’s really long and takes too long, but anyway, I will just state generally what’s in there, it say in the record, the court can reserve its — your [Inaudible].

    In the reply, we set out that Mr. Conner called Mr. Simler to come down to his office.

    Mr. Simler was there in Oklahoma City visiting his daughter or somebody and said he want to write him up a will or did write him up one, did [Inaudible] anybody with him, when he came down there.

    Now, we allege in here that Mr. Simler was then 75 years old, I think that’s about right, he’s about 86 now.

    Now, if the Court please, he went down there without anybody else for that reason.

    He’s going to write up a will.

    When he got down there, Mr. Conner, tried to get him to sign this letter of September the 25th which appears on page 24 of the record.

    Now, we allege that Mr. Simler wouldn’t sign it.

    They argued and quarreled and fussed and finally Mr. Conner took Mr. Simler to lunch and bought him some beer and some food and went back to the office.

    And again, they quarreled and fussed and he had us come in and finally he told him if you don’t sign, he’s going to ruin you in different things of that kind.

    So Mr. Simler thereby himself, at that age, had an Eighth Grade education, didn’t know anything about law or lawyer fees.

    John B. Ogden:

    And Mr. Conner prepared this letter and then up here where it says September the 25th, you see the word 25th, and that was blank.

    That shows up in the record.

    We’ve got a full — completely blank, and Mr. Conner wrote in there, somebody did with a pen, the 25, which indicates to me and we thought indicated that — that that needn’t be a jury matter if they had it drawn up before he ever got down there, they had to, because it had September and then blank of it.

    Now, Mr. Simler, under those conditions, signed that.

    Now he alleged that he was imposed on by his lawyer, that his lawyer practiced actual fraud on him and constructive fraud.

    If the Court please, I want try to —

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    It’s in the — it’s in the response to the answer in cross complaint.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes, the response, if Your Honor please, I could show you at the beginning on the —

    [Inaudible]

    John B. Ogden:

    Here.

    It’s rather lengthy and —

    [Inaudible]

    John B. Ogden:

    I’ll just going to say — just give me just a second — no — reply to counterclaims of defendant, page 41, beginning right there.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    We filed a complaint, if Your Honor please, claiming that we owed him a reasonable fee if we hadn’t already paid him a fee.

    We simply paid him $24,000.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Hugo L. Black:

    And that he replied instead of the counterclaim.

    John B. Ogden:

    He replied instead of the counterclaim and asked for hype of everything.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Filed —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Well, we called it —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Sure, yes sir, on reply, the counterclaim of the defendant.

    John B. Ogden:

    Now that, if Your Honor please, we set out that he was guilty of both acts of fraud.

    [Inaudible]

    John B. Ogden:

    40 — 41 is where it starts.

    Now then, if Your Honor please, it’s — we just lock on page 44 there, we say court invokes the [Inaudible] just what I’ve got here stating to you.

    And when he arrived [Inaudible], they take him to lunch and plaintiff voted — picked him — bought him some beer and lunch and things like that.

    And then that’s in paragraph 8 on page 44 and then at the time they said, “Let’s settle”, and told the plaintiff, that if he would sign the letter and they would win for him everything to his estate from the will, and that the plaintiff here then argued with the said attorney and told him he is not — he was willing for them to have reasonable fees, provide the letter of July 18th, but said attorney’s name, Leslie O. Connor, contends they were harassed, harangued and argued with the plaintiff and coerced him and told him that it was to his best interest to sign and said, “The second letter of the 25th of September.”

    Now, in the next paragraph, they allege his age and they continue to harass him —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Yes sir, when it filed the complaint —

    Hugo L. Black:

    He filed a complaint?

    John B. Ogden:

    Yes sir.

    Then when I filed this —

    Hugo L. Black:

    [Inaudible] at the trial?

    John B. Ogden:

    No sir.

    Hugo L. Black:

    And you would [Inaudible]

    John B. Ogden:

    How much will —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    That’s correct, if Your Honor please.

    Hugo L. Black:

    Now, when did they — when did the court ruled he was not entitled to a review?

    John B. Ogden:

    Well, that’s about — well, if the Court please, could I say one other word on that jury a bit. On the reply — in my reply, I demand the jury then and then on the response to the motion for summary judgment, I demand it — well now, Judge Wa —

    Hugo L. Black:

    [Inaudible] on the complaint?

    John B. Ogden:

    Yes, sir; second, on the reply and third, on the response for the motion for summary judgment, three different times.

    Now, if Your Honor please, the first judge who is now deceased, Judge Wallace, he granted us a jury trial, but he never did get to try the case.

    He transferred the case during his lifetime over to Judge Chandler.

    Then the first time it came up before Judge Chandler, I would say it was on the type of a pretrial proceedings, in other words, we all went up there and so — he — I said, “Well, we’re entitled to a jury trial and he wouldn’t give us one.”

    So he just set it down for trial for about 10 days.

    He also said he’s going to try that case without a jury, that he could influence the jury either way, said, it wouldn’t make any difference.

    He understood what lawyer fees were.

    So he just overruled me on that.

    Well, then I went to Denver and filed of a suit for mandamus or mandamus against Judge Chandler.

    John B. Ogden:

    Now, that’s set out in the record here.

    And in that case, the Circuit Court held I was entitled to a jury trial and ordered him to give me one.

    So then it went back before Judge Chandler and he said, “Well, I won’t do anything but sustain a summary judgment, a motion for summary judgment.”

    So, be in a kind of trial to it, so they —

    Potter Stewart:

    But the Court of Appeals’ order had provided for the possibility of a summary judgment?

    John B. Ogden:

    Yes, it had.

    It said, if the Court please —

    Potter Stewart:

    Yes.

    John B. Ogden:

    — that they direct him to vacate for denying a jury trial, but it would not anywise affect his — if he want to rule on a summary judgment —

    Potter Stewart:

    What?

    John B. Ogden:

    — and he could do that if it he justified it or something like that.

    Potter Stewart:

    Yes.

    John B. Ogden:

    Any way, he wasn’t — he wasn’t violating the orders of the court in sustaining the motion for summary judgment.

    So, then he sustained the motion for summary judgment.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    It’s whether we’re entitled to a jury trial but if the Court please —

    Hugo L. Black:

    What do you claim — and now you claim [Inaudible]?

    John B. Ogden:

    Just simply because the fact that this is in a nature of a debt.

    If it’s anything we owe him money.

    Hugo L. Black:

    What do you think is it governed by?

    John B. Ogden:

    That’s governed by the Seventh Amendment of the Constitution of the United States.

    Hugo L. Black:

    What do they claim?

    John B. Ogden:

    Well, they claim it’s governed by a state law and —

    Hugo L. Black:

    [Inaudible] governed by a state law.

    John B. Ogden:

    Well, that’s what the claim there in the trial of that matter and that’s what the Circuit Court held, that’s the reason we’re here now.

    Potter Stewart:

    I didn’t understand that to be the claim of your adversary in the brief.

    John B. Ogden:

    The brief, I said that’s what they claimed then if Your Honor please.

    But now in their brief, I believe, I marked it here so I could call Your Honor’s attention that I think now, that the — that they admit that we should apply a federal law instead of state law because they say in their brief on page 20, so far as respondent is aware, this is matter that never gets squared or laid at rest by this Court and it never has been.

    There was one case where the court said that they’d leave it to some other case, but it never been ruled on direct.

    In respondent’s view, the better recent decision of the Federal Courts of Appeals supports the notion that federal rather than state law should control this characterization and then citing cases — we both cite the same case.

    John B. Ogden:

    We conclude for right to a jury, our court trial and the federal court has been and should continue to be solely one of federal practice.

    Now, on — also on the side of this view, there is a very important fact that — that of course it create a lot of different proceedings.

    We’d to have a jury fit the state and have a different — the federal court said operate in different ways in determining whether so that is the first question to be decided, whether federal law applies, the constitution of the United States or whether the state law applies in the —

    [Inaudible]

    John B. Ogden:

    We agree on that, but if —

    [Inaudible]

    John B. Ogden:

    Yes sir, now if the Court please, of course, I didn’t know when they filed this, that there would be such agreement.

    Even if we did agree, we then still be, if the Court see, whether either one of —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    This brief here is the first time that I know of, if the Court please, to see if they had agreed to that, that opinion of Southard versus MacDonald upon which the Circuit Court based its opinion wouldn’t have been worth anything in the federal court because that was a state court decision.

    And that — that’s what the opinion that I’m trying to get reversed here is based upon a state court decision, not upon a federal court.

    [Inaudible]

    John B. Ogden:

    Well, they just say, if the Court please, in that case, that this Southard versus MacDonald, a case that I’ve just told you about, it was decided by the Supreme Court of Oklahoma while this is up here on rehearing.

    There, the Circuit Court just simply said, under that opinion, the way they have to — the way they construed it, we’re not entitled to a jury trial and just send it back down there and then try it without a jury.

    William O. Douglas:

    Well, if this is a matter of federal law, why do you suppose this Court remanded to the —

    John B. Ogden:

    If the Court please, that was the —

    William O. Douglas:

    — the Court of Appeals for consideration in light of a state case?

    John B. Ogden:

    Well, if the Court please, may I say this to the Court, if that was the thing the Circuit Court, I’m sure I’ve thought that if you —

    William O. Douglas:

    Well, there — there were three of us dissented I think.

    John B. Ogden:

    Yes, if Your Honor please, you dissented and Justice — Chief Judge Warren, Judge Black and you said that it should be tried on the Seventh Amendment and — so you three judges did — but the Circuit Court, I tried to argue that with them but they — they kind of felt — like they wouldn’t sent it out there if you didn’t feel like that, that Oklahoma case, you know, it should control and that’s what —

    Hugo L. Black:

    I know, but the other side seems to agree with you now, aren’t they?

    John B. Ogden:

    They agree with me now, but not then.

    Now, if the Court please, I want to say this to the Court.

    [Inaudible]

    John B. Ogden:

    Well, I don’t know, they don’t have to tell what, but anyway, if the Court please, I want to say this to this Court and I deeply appreciate it if I can make myself clear on this point.

    In 19 — in 46 P.2d, Haunstein versus McCalister at page 552, I’ve cited in my brief, but to me it is a very important case here, because in that case it’s exactly like this case.

    Now, they — nobody could argue and I don’t think anybody would argue in this Court and in any other court that we’re not entitled a jury trial unless the second letter of the 25th day of September which was two months and nine days after the first one and while the relationship of attorney and client existed, unless that is binding on us.

    Now, may I call to the Court’s attention that this Haunstein versus McCalister case is exactly inborn from the Oklahoma Supreme Court and it says this, and I won’t — I might make a little error here in quoting this but very little.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    In the case where an attorney makes any contract agreement with his client after the relationship of attorney and client exist, that there is a legal presumption that its fraudulent, going to make it [Inaudible] it’s legally presumed to be fraudulent, that’s the Oklahoma law.

    John B. Ogden:

    And that the burden is upon the attorney to show that it is fair, just, and equitable, this is the Supreme Court speaking and even then, now this is a part I would deeply, like to deeply impress on Court because this answers the case, dispose of it, and even then, he is not entitled a more than reasonable compensation regardless of the contract price.

    Now, that’s the Supreme Court of Oklahoma speaking not me, regardless of contract price.

    Hugo L. Black:

    Well, are you now — are you arguing now that it should be governed by the law of Oklahoma?

    John B. Ogden:

    No sir.

    I’m not —

    Hugo L. Black:

    Why do you cite that Oklahoma case?

    John B. Ogden:

    For a simple reason, if Your Honor please, to show that that second letter was void.

    That’s the reason I did that.

    Not on the question of a jury trial or a non-jury trial.

    But if you didn’t have the second letter in there, there couldn’t be any question in the word.

    And I don’t think it could anyway, because we alleged fraud and the courts held that is a jury question.

    Hugo L. Black:

    But how do you think the right to trial by a jury is good, by the complaint?

    John B. Ogden:

    Goes about the nature —

    Hugo L. Black:

    [Inaudible] that come later.

    John B. Ogden:

    By the nature — no sir, this Court passed on that squarely by the nature of the action, the kind of a law — lawsuit it is, the nature of the action.

    Hugo L. Black:

    That it brought — the nature of the action that is brought?

    John B. Ogden:

    Yes sir.

    Now, we brought the — this — and then this Court has said, now you — I’m sure all the members of the Court remember the case of Beacon Theatres versus Westover judged out in Los Angeles —

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    Do you remember that case?

    Well now, that case, if the Court please, I’ve cited that in here and that case, they ordered him to give a jury trial.

    Now, there are many others which I can cite and I have to say there’s many others there.

    But now, here’s a case that I want to call to attention of Justice Black there, the result of the opinion written by this Court, its Dairy Queen versus Howard and others judge and that was decided in April 1962 and it’s found in 82 Supreme Court at page 894, and I’ve cited that in my brief, and in that case, this Court used this language and I would like very much, if I might, to read a very short part from that.

    Now, I don’t know about the Supreme Court of United States, but in Oklahoma if Your Honor please, the syllabus in a case that is made by the Constitution of the State of Oklahoma, the law of the case.

    So, I’m just going to read here briefly from this Dairy Queen, Petitioner, versus Honorable Howard J. Wood, Judge.

    [Inaudible]

    John B. Ogden:

    Yes sir, just the syllabus, I’m reading the syllabus 4 now.

    [Inaudible]

    John B. Ogden:

    Yes, but I know this —

    William J. Brennan, Jr.:

    You can’t read this from the opinion.

    John B. Ogden:

    Yes, I can, if the Court please, if I just have — I’ve got it marked just a minute, I’ll go over here, this subparagraph.

    Hugo L. Black:

    [Inaudible]

    John B. Ogden:

    I believe it would too, of that reason, we just get — I haven’t read that syllabus out of the Court because our Constitution makes that law of the case.

    Now — “At the outset, we may dispose of one of the grounds upon which the trial court acted in striking the demand for the trial by jury.”

    I’m reading on page 896 and paragraph 1, “That based upon the view that the right to trial by jury may be lost as to legal issues where those issues are characterized as ‘incidental’ to equitable issues, for our previous decision make it plain that no such rule may be applied in the federal courts”, citing Scott versus Neely, decided in 1891.

    “This Court held that a court of equity could not even take jurisdiction of a suit in which a claim properly cognizable only at law is united in the same pleadings with a claim for equitable relief.”

    Now, then the court said that — I’ll just read it on down here.

    Now, just one second, I want to find that part, if the Court please, at the — that for just a second, where the court said, “We were not only entitled”, this Court said — they were not only entitled to have the jury determine whether it was a breach of the contract, but they were entitled to have the jury determined just what the contract was.

    Now, that’s what we’re saying here.

    Now then, if the Court please, if you take the second letter of the 25th day of September out of this case, you just have one that entitles us a reasonable lawyer fee.

    Now then, the very fact — the evidence before this Court today without a witness being sworn the very fact that they’re here contesting a jury trial and saying they want the letter of the 25th day of September 1952 to stand as a criteria in this case, that very fact shows if the Your Honor please, that they think, the opponent — the respondent thinks that that second letter was to his benefit or he wouldn’t be paid his due because the first letter gives him a reasonable lawyer fee.

    So why would he need the second letter if all he wants is a reasonable lawyer fee?

    There’s no reason for whatever except that it gives him a terrific advantage over this old man.

    Now, in this case, the — the respondent — now in this case, this is for a breach of a contract and an infringement on one of these rights, in order to operate this Dairy Queens and it was for the county, it was for an injunction, trademark infringement, and breach of the contract.

    And the court said — here’s the necessary prerequisite — I’m reading on page 990.

    “The necessary prerequisite to the right to maintain a suit for an equitable accounting, like all other equitable remedies, is, as we pointed out in Beacon Theatres, the absence of an adequate remedy at law.

    Consequently, in order to maintain such a suit on a cause of action cognizable at law, as this one is, the plaintiff must be able to show that the action between the parties are such a complicated nature that only a court of equity can satisfactorily unravel them.

    In view of the powers given to federal court, I’ll just skip on down here to what — “A jury, under proper instructions from the court could readily determine the recovery if any, to be had here, whether the theory finally settled upon is that of a breach of contract, that of a trademark infringement, or any combination of the two.

    The legal remedy cannot be characterized as inadequate merely because the measure of damages may necessitate a look into petitioner’s business records.”

    Now then, if the Court please, in this opinion, I don’t have that part marked, I thought of it though, but I don’t see it right quick and I don’t take up too much time just looking around there and try to find the portion of that opinion, but that opinion says this, I know, it’s says that the court — the first litigant is entitled to have the jury pass upon, not only whether there was a breach of the contract but just what the contract was.

    Now, in this case here, if the Court please, the — we’re entitled to have jury we think to decide whether or not this contract which Mister — it’s not really a contract, I don’t think you can call that anything.

    The reason that I don’t think it has any legal name is because Mr. Connor never did sign it.

    But when he took the employment on the 13th — on the 8th — yes, the 18th day of July 1952 and became Mr. Simler’s lawyer, Mr. Simler had the right to rely upon him in every detail, and to have great confidence in it.

    Now, that he couldn’t make any other contract except for a reasonable fee.

    And then there’s another thing I want to call the Court’s attention, a racehorse can just run so fast and they can’t run any faster, and a lawyer can try a case just so hard and he can’t try it any harder.

    But when he makes a contract, did he represent somebody, he makes one impliedly that he will do the very best that he can for his client.

    So what consideration could Mr. Connor give to Mr. Simler.

    And Mr. Simler said, “Well, you’re already my lawyer, you’re doing the best as you, aren’t you?

    He said, “Yes.”

    Well, what’s the use of — what consideration can you give me for making another contract, there couldn’t be any, because he don’t have anything except the services and he’s already obligated to give him to the best of his ability and to his best to his extent.

    [Inaudible]

    John B. Ogden:

    Yes, he would, if the Court please, you know I haven’t had of those but I do think that — that lawyers, I’m of course — I mentioned I practice all — kind of practice all good a while.

    Now, then if the Court please —

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    He had to pay anymore, that’s correct.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    That was on the orders of the court.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes.

    I was — I did that if the Court please, because the court ordered me to.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes, sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Yes sir.

    Arthur J. Goldberg:

    [Inaudible]

    John B. Ogden:

    Well, I thought, if the Court please, if you will pardon me saying this, I thought that’s all to be to it and think it take over it.

    I — they just put a jury out then that Mr. Conner testified what all he did and other lawyers testified what they thought was reasonable and then that’s what I want in the testimony we wished to and what our kind of thought is reasonable, but a jury go out, judge say, “You’ve heard his testimony, go out and decide what’s a reasonable fee.”

    Now, that’s what I thought.

    Now, if the Court please, would you pardon me to just finish, I want to make a statement to you now.

    Oh, I mean, me and not you, I just wanted to tell you that.

    John B. Ogden:

    You see, this letter was without consideration.

    Now, an agreement to do that which a person is already bound to do is no consideration at all.

    Now, Mr. Conner was bound under the letter of the 18th of July to represent Mr. Simler, everybody admits that.

    Now, then therefore, he was already bound to an agreement to do something which are already legally obligated to do is no consideration and I have two cases on that.

    One of them, if you will pardon me for being personal again, was one, I was a trial judge, a district judge down Ardmore, Oklahoma, I ruled that away and the Supreme Court affirmed it, I have cited it in my brief there not because I rule them, just because it happened to fit in the case for somebody who tried to enforce a contract that they had made to do something which they were already obligated to do.

    Already — now, Mr. Connor is already obligated to represent him.

    Now, he has no consideration for this second letter.

    So he said, “What does the second letter have?”

    It doesn’t have anything.

    Actually, of course the jury is entitled to determine and that’s what judge Wallace ruled, what the Circuit Court ruled twice to this — until Southard versus MacDonald came up.

    But anyway, if the Court please, in that case, the jury is entitled to decide.

    I feel positive under the holdings of this Court and all of the United States.

    I have cited cases on matters in the nature of lawyers’ contracts, but there — a lot of them insurance cases.

    But out here in California, the legislature finds the law that said that if a lawyer, you know, quit the case, had been trying along this with — while then, the judge could fix the lawyer fee.

    Well, the Court of Appeals of California said that’s unconstitutional.

    It said the lawyer is not entitled to anymore preference than anybody else.

    If he has any fees coming, he has a suit just like anybody else, and they held that unconstitutional.

    If the Court please, I’d like a few minutes to close, I don’t know how much I’ve used up, but I will — if it’s alright with the Court, I just want them for rebuttal.

    Hugo L. Black:

    Mr. Ford.

    Peyton Ford:

    I’ve got about five minutes, do you want me to proceed on those?

    At the outset, I’m not going to tell the Court what fee Mr. Connor is paying.

    I’m going to get this — maybe I can briefly get this back in perspective, at least I’ll try to.

    In September 1952, Mr. Simler retained Mr. Connor to contest a certain will filed by Mr. Simler’s sister which left him $1 under the will.

    In September, a supplemental agreement was made and that was entered into setting forth what a reasonable fee was to be.

    The first letter said they would be paid a reasonable fee to be decided by the county court or any court.

    That contract didn’t contemplate a jury in passing.

    But in September, after Mr. Conner had consulted other lawyers and determined not only to start an action in the County Court of Oklahoma County, but also in the United State’s District Court in challenging the right of a corporation to take land outside of the corporate city limits.

    Those matters had been discussed at great length. He told Mr. Simler and this is in the record of the complication of the litigation, his necessity to hire other lawyers to assist the man.

    At that time, they agreed upon a scale of the fees starting I think at 25 to 33 and a 50% if it went to the higher courts.

    It also provided, there’s no recovery, there is no fee.

    Peyton Ford:

    Following the September letter, litigation was began in the county court on October 2nd and in the Federal District Court on October the 14th.

    This litigation continued through both federal and state courts through 19 separate trials and appeals.

    And it wasn’t until May 1957 that it was finally included, that’s without reference to any litigation concerning the attorney’s fees.

    The Federal Court ruled first in 1953, in petitioner’s favor.

    On November 1954, the Oklahoma County Court entered a decree awarding the farm to petitioner.

    Thereafter, the respondent where the country court have awarded certain expenses and legacies paid out of the proceeds from the farm that petitioner got, the respondent took that case to the Supreme Court of Oklahoma and recovered some $73,000 for the petitioner, in other words, he does not have to be paid out of the proceeds of the farm.

    The petitioner finally took the farm beginning sometime in 1954 though this other litigation continued after.

    And it wasn’t until after he’d had the farm in his firm possession that there was any question ever came up about this attorney fees.

    It was then by some legal [Inaudible] domain, this farm just came to and there was no work done, there was no litigation, there were 19 separate proceeding, it did go to the Court of Appeals three times, the Supreme Court, twice, the Supreme Court of Oklahoma Court twice.

    Somehow, this request just came.

    And following some long period of disagreement in which Mr. Grigsby was paid off, in which another lawyers’ interest satisfied in which the proceeds to more runs — county farm amounting some 60 odd thousand dollars was used to pay Mr. Grigsby’s fee of $12,000 which left him a lien on the farm.

    And from those proceeds, minus the $12,000, Mr. Simler took $25,000, Mr. Conner took $25,000.

    In the Court’s order granting summary judgment, it was a specific order requiring on equitable accounting for any moneys that may or may not have been paid, that wouldn’t be if necessary, would on derogation of the 50% awarded to the petitioner.

    Now, these names are clearly admitted by the petitioner.

    And I’m speaking toward the motion for the summary judgment and the grant of the summary judgment.

    The terms of the September instrument, they’re not in question.

    The petitioner’s execution thereof, that is in question, poor performance by the petitioner’s obligations under that contract, in fact the litigation went not only to highest court of Oklahoma, but the highest court of the land.