FILTSCH v. BISHOP

FILTSCH v. BISHOP
1926 OK 603
247 P. 1110
118 Okla. 272
Case Number: 16823
Decided: 07/06/1926
Supreme Court of Oklahoma

FILTSCH
v.
BISHOP.

Syllabus

¶0 1. Principal and Agent--Right to Terminate Relation--Power Coupled with Interest. A power of attorney which, in effect, is a mere contract of agency is revocable at the will of the principal, unless the contract constitutes "a power coupled with an interest."
2. Same--"Power Coupled with an Interest." A power is coupled with an interest when the writing conveys, or vests in the agent, an interest or estate in the thing or property which is the subject of the agency as distinguished from the proceeds or result, of the exercise of the agency.
3. Pleading--General Demurrer--Sustained Only Where Petition, Considering all the Facts, is Insufficient. A general demurrer to a petition may be sustained only where the petition is so defective that the court is authorized, taking all the facts to be admitted, in concluding no cause of action is stated entitling plaintiff to any relief.

Dawes & Kyle and Eugune B. Smith, for plaintiff in error.
Vilas v. Vernor and R. M. Mountcastle, for defendant in error.

ESTES, C.

¶1 Parties appear in the same order as in the trial court. From a judgment against plaintiff on general demurrer of defendant to plaintiff's amended petition, plaintiff appeals. The sole question presented is, Does the amended petition state any facts upon which the plaintiff is entitled to any relief? If it does, the judgment should be reversed; if it does not, the judgment should be affirmed. The following summary of the substantial allegations of the lengthy petition will suffice for our purposes: Plaintiff alleged that by reason of his enrollment as a Creek freedman, defendant, Bishop, was allotted certain described parcels of real estate in four several counties in this state, and was the owner of personal property of the value of $ 6,000; that for several years defendant had been confined in a state reformatory, the super intendant of which was one J. H. Lilley, colored; that while he was thus confined, the said Lilley, by cunning and by overreaching defendant, procured deeds conveying all of defendant's real estate to Lilley, and also an instrument in writing from defendant, empowering Lilley with possession, control, and disposition of all of defendant's lands and his personal property, such deeds and power of attorney being recorded in the various counties where the land lay; that defendant attained his majority on August 7, 1923, at which time he was discharged from said institution; that on December 26, 1923, defendant orally engaged the services of plaintiff to take charge of his affairs, employ counsel, and do all things necessary to recover defendant's property; that in consideration of plaintiff's promise to perform such services, defendant agreed to pay plaintiff certain sums of money, already expended by plaintiff for the personal benefit of defendant; that for services to be rendered, defendant agreed to pay plaintiff 15 per cent. of the value of all of his property, and 35 per cent. thereof additional for attorney fees, expenses, and costs: that defendant also executed to plaintiff a power of attorney, copy being exhibited to the petition, and hereinafter referred to, the power of attorney being also recorded in such four counties; that pursuant to such agreement, plaintiff employed an attorney, Smith, to prosecute suits to recover such property; that plaintiff "expended large sums of money for the benefit of said defendant, Joe Bishop, and in his interest, including sums of money personally advanced to said defendant, to wit, in the sum of $ 1,000"; that on January 9, 1924, defendant executed a written revocation of plaintiffs power of attorney and duly recorded same in such four counties. Plaintiff prayed for an adjudication of all the rights and interests accruing to him under his contract with, and power of attorney from, defendant; and decreeing a lien to plaintiff upon all of The property, and canceling said revocation of such power of attorney given by defendant to plaintiff; and validating plaintiff's power of attorney, and for general relief. The power of attorney from defendant to plaintiff is lengthy, describing the real estate. The only material terms thereof necessary to notice here are that the same confers plenary powers upon plaintiff to recover, hold, manage, and dispose of defendant's property. It does not purport to grant any estate or interest therein, or lien upon, the property in favor of plaintiff.