Peyton Ford: If the Court please, I would like to briefly refer outside of the mainstream of my argument to several matters that Mr. Ogden raised yesterday. One is, the transfer of the case from Judge Wallis to Judge Chandler. On page 81 of the record, there's a letter from Judge Wallis to the clerk of the United States District Court, where he says to the clerk, “at the request of Mr. John Ogden, one of the attorneys for Mr. Simler, in the above styled case, I am assigning this case to the Honorable Steven S. Chandler for trial and disposition. In connection with Mr. Ogden's further argument as to the reasonable fee and so forth, in his deposition at 105 of the -- 106, I guess in -- of the record, he asked this question, “Alright sir, then did you know when you employed Mr. Conner, what a reasonable fee was or wasn't a reasonable fee? You put in there a reasonable fee to be fixed by the Court?” “No, but I trust him in the cost in there that we would if we couldn't agree on a reasonable fee, it'd be left up to the County Court, the court, Mr. Simler or any other court.” As to the question of federal law controlling and whether the respondent was or wasn't in agreement or disagreement with it on the prior proceedings, in fact, the position was never contested one way or the other. The Court sent this case back to the Tenth Circuit as I read their ruling for the Tenth Circuit to decide whether state law required a jury trial or non-jury trial and the Tenth Circuit in obedience to this Court's direction held that it was a non-jury trial, citing the Southard case in which they specifically held, overruled the Haunstein case that Mr. Ogden was citing at the conclusion of his argument yesterday. However, the respondent in this case does not argue that the federal law isn't applicable under Rule 56 in an action for finding a promotion for summary judgment in portion and motion for summary judgment it makes no difference whether it's a jury trial or a non-jury trial. Now, as I concluded yesterday, I pointed out that under the action for -- under the motion for summary judgment that the petitioner clearly agreed on the terms of the September agreement, the execution of it, the full performance by -- of the contract by the petitioner and that the litigation was taken to both the Supreme Court of Oklahoma and the Supreme Court of United States to this Court and as the result of his efforts they recovered this 160-acre farm which is of great value. As to the motion for summary judgment granted below, the Court held three very extensive hearings on it. Affidavits were filed, depositions were taken from all parties present at the signing of the September agreement. In petitioner's counterclaim, he asked that the September agreement be set aside because he'd been overreached. In support of this position, he basically alleged only three things: one, his age which is 74; two, his inexperience in litigation and three, the fact that he just doesn't want to be bound by the agreement. Some subjective state of mind he said occurred at the time the agreement was signed. Well, of course that can't vary the terms of unambiguous written agreement.
Potter Stewart: The petitioner's position now if this wasn't an agreement at all based on the famous race -- racehorse jockey doctrine, whatever is the race?
Peyton Ford: If it wasn't agreement, agreement the first letter wasn't needed.
Potter Stewart: Now, there's a consideration for the first letter anyway.
Peyton Ford: And a consideration for this.
Potter Stewart: What was it?
Peyton Ford: This was a mere clarification of the first document stating -- the first man said a reasonable fee, this clarified what a reasonable fee was.
Byron R. White: [Inaudible]
Peyton Ford: Yes. In my --
Byron R. White: [Inaudible]
Peyton Ford: Well, he is talking about the --
Potter Stewart: [Inaudible]
Peyton Ford: Well, he is talking about the Haunstein case which this Court in effect held and the Tenth Circuit specifically held overruled in the Southard case overruled the Haunstein case. And the first -- I think the most important consideration is that for now being upon assumption that internal Oklahoma law, this is at page 7 of my brief, affirmatively the outlaws, attorney fees, contracts are more than reasonable notwithstanding that they are prescribed in an otherwise lawful contract. Such an assumption is nowhere asserted to prove by the petitioner either below or in the -- or in his brief before this Court. At any event, the recent decision of Southard makes it plain that such assumption is not the substantive law of Oklahoma. The only precedent respondent cites is Holstein which I said has been overruled but in the subsequent case, the Oklahoma Court stated and I'm quoting, “Since we hold that the deed and the attorney client contract are binding. There is no necessity to discuss the value of the services on quantum meruit.” And when they had to say that in attacking such an instrument that the -- it was the action was equitable in nature but I'm not relying upon the substantive law of a state to characterize this as one equitable action. It's clear under the federal law that is an equitable action.
Speaker: I understood, perhaps I'm wrong. I understood that you were arguing this case on the premise that federal law controlled both with respect to a right to a jury trial and with respect to the characterization is equitable or non-equitable.
Peyton Ford: That's right.
Speaker: The cause of action, federal law applies throughout, that's your premise?
Peyton Ford: That's my premise.
Speaker: So that the Southard and the case for these purposes decide the point?
Peyton Ford: So far as the substantive law of the state though concerning when you reached a --
Speaker: Right.
Peyton Ford: -- the reasonableness of --
Speaker: In other words (Voice Overlap) --
Peyton Ford: -- 20 more contract --
Speaker: -- to be more concrete. If under state law this action would be characterized as an equitable cause of action, but under federal law and I'm just assuming just for a moment, under federal law it would be characterized as an action of law, the federal law would govern and a jury trial would follow, isn't that your premise?
Peyton Ford: Yes sir.
Speaker: That's what I thought.
Potter Stewart: Well, wasn't your premise in the petition for rehearing which I have, I sent to the clerk's office for (Voice Overlap) --
Peyton Ford: I meant to bring that up (Voice Overlap) --
Potter Stewart: -- in the original denial of -- in the original denial of certiorari you relied entirely on Southard for the proposition that there was no right to a jury in this case.
Peyton Ford: Under state law.
Potter Stewart: Under state law.
Peyton Ford: Because the Tenth Circuit has relied upon state law, not federal law. We hadn't met the question. In my judgment, now you've -- now the Court has before it clean.
Speaker: In other words, there is no basis -- a suggestion where -- suggest in your brief that we should dismiss the writ as improvidently granted because the jury question in the --
Peyton Ford: Yes, if you want to follow the doctrine of constitution (Inaudible) --
Speaker: It's squarely, isn't it?
Peyton Ford: It's squarely here but if the summary judgment was properly granted, you don't reach it.
Speaker: Yes, but summary judgment was granted on the first door around the state court and Court of Appeals reversed (Voice Overlap) --
Peyton Ford: I contend the court of -- my contention is the Court of Appeals was in error when they sent it back to the Court for trial before the Court.
Speaker: But the fact is that the case since their first conversion by the Court of Appeals was tried on the merits.
Potter Stewart: It never been tried on there?
Peyton Ford: Never been tried.
Speaker: Wasn't it?
Peyton Ford: No sir. They sent it back to be tried and (Voice Overlap) --
Speaker: I beg your pardon. Yes, I see. Yes, you're quite right.
Tom C. Clark: You say there's no conflict in the facts?
Peyton Ford: That's right.
Tom C. Clark: That therefore the summary judgment was properly entered.
Peyton Ford: That's right.
Potter Stewart: But the Court of Appeals –-
Tom C. Clark: [Inaudible] then you say that not entitled to a jury under federal law anyway?
Peyton Ford: That's right. And I say that because the Seventh Amendment is the only amendment that has any so-called historical background and Judge Friendly in a recent case pointed that out very clearly and if you go back to the historical background under the Seventh Amendment, it's only those trial -- only those cases that were entitled to a jury trial by common law in 1791 that are now entitled to a jury trial. Well, at common law, in 1791, a contract between a client and a barrister was not enforceable at all. Though, there was no cause of action but following in another step under federal and under all these cited cases, an action to set aside and rescind a written agreement is purely equitable. And under the Seventh Amendment, that is not triable to the jury. And it's an equitable proceeding here because you can't reach the question of a reasonable attorney's fee until this document is set aside or modified which is purely equitable in nature. So anyway, you reach it, I don't think you can reach the question that this is triable to a jury.
Tom C. Clark: What about the fraud issue?
Peyton Ford: Well, it's our contention that there's completely no evidence of fraud in the case that as I have previously stated, they only relied upon three things, his age, his inexperience, and his unwillingness to be bound with the contract.
Byron R. White: Is this your only -- is your only answer to Justice Harlan's question [Inaudible] is an allegation cause?
Peyton Ford: The mere allegation --
Byron R. White: [Inaudible]
Peyton Ford: A mere allegation of ultimate facts --
Byron R. White: Yes, but the (Voice Overlap) --
Peyton Ford: -- and conclusions.
Byron R. White: -- the summary judgment was the only -- and there's got to be a trial for the -- there's an allegation of fraud [Inaudible]?
Peyton Ford: Yes, but I want you to consider that the Court in grating this motion to summary judgment had before it affidavits. It had before it depositions of all the parties, all the parties were present. And the Court in its sound discretion and this Court must recognize some discretionary right upon a trial court in granting a motion for summary judgment. Now, that there was no overreaching --
William J. Brennan, Jr.: Now, let's see now, that the court was -- I haven't looked at these affidavits, are they in the record?
Peyton Ford: Yes.
William J. Brennan, Jr.: On the motion for summary judgment?
Peyton Ford: Yes.
William J. Brennan, Jr.: Were the facts that Mr. Ogden pleaded, he told us yesterday require to the counterclaim, were those facts developed in affidavit?
Peyton Ford: They have simply didn't exist in the affidavit.
William J. Brennan, Jr.: You mean they were not in the affidavit?
Peyton Ford: Not as he stated, no.
Byron R. White: Well, let's just assume there's a -- was there -- was there a question on summary judgment in this case whatsoever, that is going to be at the trial [Inaudible] on the merits on whether or not this contract to be rescinded for fraud? Now, is it your contention that it will be tried by a jury or not? Is that an equitable -- is that an equitable action?
Peyton Ford: That's an equitable action, certainly.
Byron R. White: Well, [Inaudible] in any event, was there fraud in the case or there isn't -- the -- that the action was set aside, that it involved [Inaudible] -- that this case involved the [Inaudible]?
Peyton Ford: Without to --
Byron R. White: [Inaudible]
Peyton Ford: Without burdening the Court, I think this is clearly stated in Moore's Federal Practice, Volume 5 at 183 in Footnotes 2 and 5 on the question Justice White has just asked me.
Speaker: Mr. Ford, it is true, I take it, that in order to deal with this matter on the summary judgment premise which I think would result in dismissal of the writ as far as I'm concerned if it's correct.
Peyton Ford: Yes.
Speaker: We'd have to reverse the Court of Appeals' determination that there was a triable issue of fact?
Peyton Ford: Yes, sir.
Potter Stewart: The Court of Appeals has decided that twice in effect, in both its opinion. First, by remanding it for a trial before a jury and then by remanding if for a trial before the Court twice that is -- it is adhered to the position that summary judgment was inappropriate and improper in this case.
Hugo L. Black: What is the basic dispute between you and [Inaudible]
Peyton Ford: That's such a simple question. I don't know why I can't answer it.
Hugo L. Black: [Inaudible] something to do with the case. Isn't the basic dispute whether you hold them -- they owe you money, expressed on -- via express by 5 contracts?
Peyton Ford: Yes sir.
Hugo L. Black: That's the basic dispute between you?
Peyton Ford: Yes sir.
Hugo L. Black: What about common law action of this type, who tries that?
Peyton Ford: The common law action in this type of case I contend is equitable -- is triable to the Court if we didn't have Rule 56 in the summary judgment doctrine and I contend that's applicable --
Hugo L. Black: That's (Voice Overlap) but assuming that the summary judgment was wrong from the evidence, there was a dispute in fact between them, wasn't there?
Peyton Ford: This is a -- this is a construction in his counterclaim to set aside the contract providing for these great -- graduating fees from 25% to 33% to 50%.
Hugo L. Black: What was the dispute set up in the complaint?
Peyton Ford: The original complaint was an action for declaratory judgment to find out how much -- who owed who and how much.
Hugo L. Black: Who owed who?
Peyton Ford: And how much.
Hugo L. Black: That -- as I recall it under the common law that was at least considered a pretty good common law action, wasn't it?
Peyton Ford: I would say so but --
Hugo L. Black: Isn't it about the most basic, most premised common law action to bring up a dispute about how much somebody owed somebody else?
Peyton Ford: Well, if it is in nature of accounting, it could be equitable.
Hugo L. Black: Well, no question here that you had to have any accounting, is it?
Peyton Ford: Yes, there is an accounting question.
Hugo L. Black: There's an accounting, was that the basic from which you are claiming that it was not triable by a jury?
Peyton Ford: No, but we filed just an answer to his action for a declaratory judgment. We counterclaimed and pled that September 25th agreement which he and his -- the petitioner in his original action only pled that July (Voice Overlap).
Hugo L. Black: Is that your position that the counterclaim deprived the man of a right to trial by a jury who has filed a complaint and was entitled a right to trial by a jury?
Peyton Ford: Certainly because he can't get to the first letter until the second contract is construed by the Court and that's not a jury question.
William J. Brennan, Jr.: But the second -- second one is set aside.
Peyton Ford: No. Set aside.
William J. Brennan, Jr.: On the basis (Voice Overlap) --
Peyton Ford: And that's an equitable question.
Hugo L. Black: Better not, provided they two, they have -- one of them equity and try it first whether he's been -- contracts would be rescinded if they decide it shouldn't and you got to sue on that contract then you go back to common law and get a jury, is that it?
Peyton Ford: No, I don't think so in this case because the very --
Hugo L. Black: And in any case if this --
Peyton Ford: Well, there's a variation --
Hugo L. Black: Completing it up like this.
Peyton Ford: There's a variation on the theme here. In this case, the July contract specifically provided that the reasonableness of the fee would be decided by a county court or any other court. It never contemplated the jury in the original agreement.
Hugo L. Black: Well, there's -- do you mean that the reasonable agreement waived the right, constitutional right to trial by a jury in the federal court?
Peyton Ford: I don't think it was a waiver of a constitutional right. It was the -- it was embodied in the contract and even in his deposition in this cause the petitioner never questioned that. I just read that to --
Hugo L. Black: [Inaudible] the whole case rescinded somewhat on how men viewed the right to trial by a jury under the Seventh Amendment, doesn't it?
Peyton Ford: Yes, I'd say that.
Hugo L. Black: [Inaudible]
Peyton Ford: I'm sure. Have a lot to do with it.
Byron R. White: But why wouldn't -- why wouldn't the [Inaudible] had the right to a jury trial with the [Inaudible]? Then the remaining question is how much [Inaudible] or how much [Inaudible] was it?
Peyton Ford: [Inaudible]
Byron R. White: [Inaudible]
Peyton Ford: No, but I just stated to Justice Black, he have never contended including his deposition that the summary judgment he was ever entitled to a jury trial under his July agreement. And under the historical test that I first mentioned which I'm coming back, there was no right to a trial by a jury or any right. It was only moral obligation under English common law for the enforcement of attorney embarrassed with the contract and is -- it's simply to me the -- probably the best analogy.
Byron R. White: [Inaudible]
Peyton Ford: If you can't sue -- you can't sue --
Byron R. White: [Inaudible]
Peyton Ford: Well, no but their actions -- analogies to it, actions to set aside the verdict notwithstanding and so forth and so on. I think that perhaps the best analogy is you can't sue the sovereign without his consent. That was the common law in 1791 when the Seventh Amendment was enacted. There are many cases where the sovereign has given his consent to be sued but the Courts have consistently held that that doesn't give the right to a trial by jury that similar to this cause of action in the -- neither one of them existed. Now, that they have come in to being since the Seventh Amendment whether it be by the sovereign in an act of grace or whether it be just the change of the law, that doesn't change your right to a trial by jury.
William J. Brennan, Jr.: Well tell me, Mr. Ford, if summary judgment point has no merits, aren't you going to shift probably with your other argument in light of our Dairy Queen and that other decision of ours --
Peyton Ford: I don't think so.
William J. Brennan, Jr.: How do you distinguish them?
Peyton Ford: In the Dairy Queen case of the petitioner's defense to a breach of contract was the subsequent oral modification of the contract and the Court held there that while there was such an oral modification raised factual issues triable to the jury, I don't think that's our case at all. In our case, there's never been any question as the alleged September contract or what it is or its terms and conditions. The only question raised is sought to be set aside by fraud. But in this point, the underlying facts aren't contested. And even if they weren't, the dispute would be subsumed within the overall claim set aside for written instrument which is equitable in nature. We have no dispute on the facts here. In Dairy Queen you had an attempt to modify --
William J. Brennan, Jr.: Are there federal court decisions -- at least, are there any in this Court that an action to rescind a written agreement for ground -- on grounds of actual cause are equitable in nature?
Peyton Ford: Yes, there are several. There was -- the Moore citation I gave you had several cases. I don't have them --
William J. Brennan, Jr.: Are they decisions of this Court?
Peyton Ford: Yes, sir.
William J. Brennan, Jr.: I don't think that certainly state facts; that the reason wasn't in my state.
Peyton Ford: I will get the decision, there is one in -- it's cited in the Moore citation cited in our brief on page 22 and some subsequent cases following that on page 23. Am I right? I'm wrong, that was another citation on Moore, that must be the 183 citation.
Byron R. White: Page 29 of your brief?
Peyton Ford: Yes, that's it. I was looking at the wrong Moore. Those are the cases and the case is cited in those two footnotes I mentioned on Moore, the full text in Moore is not cited here. The only other case that I remember Mr. Ogden mentioning was the Beacon Theatre case. In that case, the Court held that where legal and equitable claims have joined, it's improper to try the equitable claim by the Court ahead of the issues triable and the jury for this might incur of the litigants' right to a jury trial. I think the answer to that has two reasons. The first is that the Beacon doctrine affects only those cases where there's an issue of fact common to the legal and equitable claims and that isn't true in this case. The question about the reasonable attorney fee here has nothing whatever to do with the question of whether the September instrument was fraudulently induced. And furthermore, the reasonable fee claim is a contingent claim, that is it's not an -- it's not an alternative to the cancellation of the contract, that is the reasonable fee claim is contingent upon the cancellation of the contract. It's a claim that can arise only after it's been decided that the September instrument was to be set aside and Beacon doesn't reach that question on purely contingent claims and in that, I call your attention to the case of Damsky v. [Inaudible] cited on page -- its 289 F.2d. That's same case that I cited in connection with historical construction of Seventh Amendment decided by Judge Friendly in the Second Circuit.
Hugo L. Black: Do you think that's consistent with Beacon and Dairy Queen?
Peyton Ford: Sir.
Hugo L. Black: Do you think Judge Friendly's opinion is consistent with Beacon and Dairy Queen?
Peyton Ford: Yes sir, within the ambit of the given factual situation in this case. I would like to read briefly from a colloquy between the Court and Mr. Ogden that was referenced to 102 of the transcript where the Court is doing its best to get Mr. Ogden to tell him what other evidence he has to offer except the affidavits and depositions filed in connection with the motion for summary judgment. The court says, what additional testimony, I don't want to know what it is, but what point would you offer it to. Well, if Your Honor please, we would offer just for the reasonableness of the fee. That is one thing we would do because we think that would be proper. Next, Your Honor, Mr. Simler has testified he doesn't desire to change his testimony but we do desire to corroborate it with other testimony which we have at the time of the Court. Now, could there be any other testimony on this point? Well, Mr. Conner and Mr. Simler are in complete disagreement on what took place. There were only two of them who were there but if the Court please I'm not saying, “Well, there are other people there both charged whose testimony you're going to rely upon or add to it.” Well, I think I'm going to rely upon Mr. Arnold Britten who was a third person present. Mr. Britten sued Mr. Simler for attorney fee. You're going to use Mr. Britten now, what are you going to prove by Mr. Ogden Judge. I've got his deposition as I recall it, he testified in that deposition I don't attempt to remember the details, but as I recall he testified, it was after this county court case which is October 2 that Mr. Grigsby got up the idea to file a suit in a federal court. Mr. Conner had nothing to with it. Are you willing for that to be part of the record, Mr. Bailey who was representing Mr. Conner then, we're willing to stipulate that the deposition be filed in this case; his affidavit as to his testimony is also on file. The Court, “What about his deposition there, why don't [Inaudible] his deposition come in.”
John B. Ogden: He was her adversary. Mr. Bailey, it won't change the truth. Mr. Ogden, we're bound -- we're not bound in the adversary proceeding. The Court if you want him as a witness, surely you -- if you want him as a witness here, you want to bound by him, not all of the judge, the Court just part of it. Somebody sues you and you have their testimony you don't want all of it in other case just the part that's relevant to the execution of a letter.
John B. Ogden: May I say to the Court what other witnesses do you have? And I've mentioned one there, “Alright, what about it? Let's -- let -- we will let that in and if you will get the deposition up here and only that will go in with reference to the letter of September 25. Any evidence in their first letter that may be used then you got it in the record as any other evidence and you got it in the record and any other evidence cannot be considered.” What are you going to prove on something more in Court and let's see what it would be? Mr. Ogden: Well, I have getting up here and talk to him. The Court: I thought you came here for pretrial and then it goes on. But it's clear all the depositions, all the affidavits before the Court and although the colloquy isn't as clear as it might be it's also clear that one of the evident -- other evidence that could be produced. And I make that argument in support of the motion granted to sustain the summary judgment. And in the pleadings their only conclusions pled, they're not our ultimate facts. There are no facts alleged as to fraud of any appreciable nature. There's only one other factual situation I would want to mention that Mr. Ogden yesterday did mention that Mr. Conner had Mr. Simler up there for the purpose of signing a will in September 1952 when this latter agreement presented into by Mr. Simler's deposition that is lodged in the clerk's office on page 30. That will was entered into in September 1953 not September 1952. Now, in conclusion, if I can reach after briefly it's the respondent's position: one, that in a federal diversity action at summary judgment is a perfectly proper method of procedure even though the countervailing practice doesn't prevail in the foreign state. Two, that under summary judgment action it makes no deference whether the case is triable to a jury or not to a jury; three, that the court acted properly in granting the summary judgment.
Speaker: How much money is involved in this in addition to attorney's fee?
Peyton Ford: I don't know, this is a 160-acre farm in Caddo County which is in the so-called a cement producing area of Oklahoma. It's got oil runs of about four -- 350,000 and 40,000 a month --
Speaker: This is an oil situation?
Peyton Ford: And it's (Voice Overlap) --
Speaker: [Inaudible]
Peyton Ford: That is one of the riches producing area in Oklahoma has about 13 producing sands and I don't know how many been touched on this 160.
Hugo L. Black: Does the record indicate how much it's worth?
Peyton Ford: I would -- from half a million to 400,000.
Hugo L. Black: And the claim -- there's difference between what's a reasonable fee and what's presented to that trial?
Peyton Ford: Half of it.
Hugo L. Black: Half of it?
Speaker: That is about $250,000?
Peyton Ford: Of course, there are some -- some didn't pay that would have to be accounted.
Speaker: Yes, sure.
Potter Stewart: Some $90,000 had been paid, isn't it?
Peyton Ford: I don't know what the exact (Voice Overlap) --
Potter Stewart: [Inaudible]
Peyton Ford: There was -- there were 25 and the question is to -- how you treat some 12,000 but the services of any other attorneys if Mr. Conner hired in this was to be taken cared out of his 50%.
Potter Stewart: Of Mr. Conner's 50%?
Peyton Ford: Yes.
Hugo L. Black: Aside from this litigation over the fee, what other litigation you have now?
Peyton Ford: In the beginning, they filed a -- this -- the sister of Mr. Simler died and cut him off with $1 and no more. That was when he went to Mr. Conner. He filed an action in the County Court of the Oklahoma County contesting the will. That was on October the 2nd at 1952. On October the 14th, 1952 they filed an action in federal court to set aside the will, contending that because this was a corporation, the Constitution of Oklahoma forbade corporation to take any land outside of the city limit that wasn't used for corporate purposes. Now, that case went to the Court of Appeals twice and the Supreme Court --
Hugo L. Black: United States Court of Appeals?
Peyton Ford: In the United States Supreme Court twice. Ultimately, it was determined that the Sisters of Saint Francis could not take under the will, therefore, it went in test and through Mr. Conner's efforts of 19 separate proceedings, Mr. Simler got 160 acres in Caddo County which we have just roughly placed evaluation on. At the same time, while the County Court admitted the factum of the will, it was a federal court action that caused ultimately this property to go to Mr. Simler. But at the same time in the probate action in the County Court, the court assessed, “How are the proceeds of the farm, certain expenses and legacies and so forth.” Mr. Conner took that case to the Supreme Court of Oklahoma and the Supreme Court of Oklahoma held of some 100 and $10,000 or $20,000 that was assessed against the farm not the estate that should be paid from these -- $73,000 should be paid from the estate, not the proceeds from the farm and in con -- I've concluded my historical Seventh Amendment question. I don't think I need to say anymore than that. Thank you.
John B. Ogden: If Your Honor please may I just state this, I really wish I had time to make -- might have to [Inaudible] I just don't feel like to justify with the short time I have left to tell the Court the -- here, you asked about the litigation. Well, all there was to it, Mrs. Fletcher died and she gave different people different amounts of money and her brother a dollar. Now, the Supreme Court of Oklahoma upheld that will. The County Court upheld. The suit the County Court, I mean the petition to probate the will was disposed off on October 2nd, 1952 about seven days after this letter was signed. Of course when the letter was signed, nobody knew what the County Court would hold. That's the first trial that was ever held. Then they appealed the District Court before Judge Mills, the District Judge and he upheld the will. Then they appealed to Supreme Court and the Supreme Court upheld the will of Oklahoma. So, then everything except this farm went to the people as a will to, Mr. Simler got nothing with that which was substantial, I would say more than a $100,000 in cash. Now, then Mr. Grigsby who had a 28% contract with Mr. Conner, said, “I will get 28% of your fee in writing.” He conceived the idea and filed this suit in a federal court saying this corporation couldn't take because it was a corporation and this farm was necessary for its operation. Now, the judge, in Oklahoma City, Judge Wallis sustained the motion for summary judgment and then Mr. Grigsby for Mr. Simler appealed and went to Denver and argued the case before the Court of Appeals and the Court of Appeals said in 210 F.2d at page 99 that this con -- this corporation is utterly forbidden to take this property because the Constitution of Oklahoma won't let it take it. So, then you have 160 acres over here with unwilled property. Well, of course where they said in that opinion that property belongs to Mr. Simler because he is the next -- he's the only heir. So, that's the way that came about. Now, if the Court please, that case was certiorari -- certiorari was denied in that case. Now, in this case here, if the Court please, I want to call the Court's attention to the fact that suppose they instead of arguing this matter that we would be arguing, are trying the case and I'd called Mr. Simler and say, “Now, Mr. Simler how old are you?” He said, “Have you ever been in court?” “No, never been in court.” Do you know anything about lawyer's fees? “No sir.” Then I want you to tell the court and jury what a reasonable fee is. They say, “Well, we object that if the Court please he is not competent to tell what a reasonable fee is. The court sustained. Now, the next thing if the Court please, if the Court will read the Haunstein case which contrary and I must engage with counsel has never been overruled by any court at any time anywhere. I have the Haunstein case here and as I quoted yesterday from that this contract, this second letter, it's not even a contract, is absolutely utterly, presumptively fraudulent, that's what that said. That was the same kind of a case between a lawyer to client in Oklahoma. So since that was presumptively fraudulent, then the Court said even the burden is on the lawyer then to prove that that second letter was fair, just and reasonable and even then, yes, the very wording of the Supreme Court, he is not entitled to more than a reasonable fee regardless of the contract price. So it wouldn't make a difference. See if the Court please, there is a great distinction when a lawyer -- a client comes in my office I can make any kind of contract with him, I want to do, but after he becomes my client, the law forbids that I make any contract with him except one that is fair and reasonable. I can't change it up because I have too much advantage of him. He wouldn't come to me unless he had faith in me. Now, if the Court please this common law matters, I will call at your attention and may I say it before I forget, I have the briefs here from the Supreme Court of Oklahoma in the Southard versus MacDonald case and I have told the Court on what they contend there just a suit to cancel the deed had nothing to with the case at bar. There's no deed and that contract in Southard versus MacDonald was made at the inception of the -- they made a contract, it says it will give you 40%. Then when they got through the case, the lawyer said, “Give me a deed, you said you'd give me 40%, you said alright.” That's contract beginning of it. They made him a deed then four years, seven months and 10 days later, those people sought to cancel that deed that they gave their lawyer four years before a fellow lawyer. And so it has no connection in this case. Now, if the Court please, this common law case that he referred to in his brief I want to read that to you. That was in 1693, it's only eight from 10 lines. It'll take just a minute. It says, I can't hardly read because that old pen, penny here but I got it anyway. The plaintiff being a counselor at law brought a bill for fees due to him from the defendant being a solicitor and was to account with him at the end of every term. The defendant demurred. This Court allowed demurer some kind of words I can't understand, demurrer affirmed and the bill dismissed, that's the common law actually that he referred to. In 1693, 98 years before the Constitution was adopted. The next one he refers too, I also have it. I'd like to read it to you, just a line from it. We do not find any difference in the Middle Ages both a like that sue for their fees but it was laid down. In 1629, 1630 that a barrister unlike an attorney could not sue for his fees but in this case, this is an attorney contract so of course that wouldn't have anything to do with it as I view it. Now, if the Court please, I really think that I should in fairness to Mr. Simler and I just didn't have time see these parties took additional time to file a brief, 30 days. Then when I got their brief and then of course I'm just a fair, ordinary lawyer and -- around in a different place but this happened to be pretty busy time of the year for me and consequently I didn't have time to get up a reply brief. I thought I should but I did make some notes which I would like to call to the Court's attention now. Now, if the Court please, Colorado, the Supreme Court of Colorado said in a case here very similar to this, all of these that I'm going to call your attention are cases where the lawyer made a contract with his client after the relationship begin. Now, in Rough versus Cool, 362 Pacific Second, 396, The Supreme Court of Colorado used this language. Now, could I just get that all here? I hate getting heard because when I do it kind of bothers me and I'm not much have the court. Here's what the Supreme Court said, “Once the confidential relationship the attorney and client exists the law governing contracts entered into them is very different, entered in to about him is very different.” The test applied to such contracts when the attorney seeks to enforce the same is well stated. 7CGS attorney and client, Section 204; when -- where after a relationship had -- this is CGS, I'm reading from, Wallis from the opinion of the Court but that Court didn't see this, where after a relationship has been established the attorney and client entered into an agreement in reference to the attorney's compensation, the burdens of whom the attorney to prove that the agreement was fairly and [Inaudible] was supported by an adequate consideration that he gave a client full knowledge of the facts of his legal rights when he entered into the agreement and that service to be performed were reasonably worth the amount stated in the agreement. And then concluding it says, upon demand and action for the recovery specific real of personal property with or without them just or for a money claim to do on a contact of damages to breach the contract must be tried by a jury unless the jury is waived, that's Colorado speaking. Now, if the Court please, as I told the Court, the Supreme Court of California held in a case that where they passed the law and California said the lawyer, if he withdraws, the judge would fix fee and they have this unconstitutional, they violated the Constitution. Now, then if the Court please, citing CGS again 50CGS 77874 where there is a dispute over terms of an agreement as to the fee to be paid, also where it is provided a statute that an acts for damages is claimed if successful may recover reasonable fee. The amount of such fee must be determined by a jury. Now, if the Court please I just won't read from these because I haven't got the time.
Speaker: [Inaudible] federal law governs this question.
John B. Ogden: Yes, that's right.
Speaker: So that this is the --
John B. Ogden: Sure, they --
Speaker: -- the point.
John B. Ogden: If the Court please now I know that when I get through here I feel like because I have overlooked something but I will call the Court's attention to this, I made a notation here -- of it. I stated yesterday and I guess it sounds that he could testify, I'm certain it didn't mean it that way that I try the case to the district judge and I held certain thing that are cited there in the brief. So the agreement to do that which were -- I didn't mean it that way but it did sound it, but here's another case from another court, an agreement to do that which one is already obligated to do is not sufficient consideration to support a contract and it promise to pay additional compensation for performance by promisee of contract, that promisee is already under obligation to perform is without consideration.
Speaker: But this isn't that situation. This is a case of parties agreeing to liquidate what is meant by a reasonable fee and I can't understand why there isn't plenty of consideration as far as that's concerned?
John B. Ogden: Well, if the Court please, may I just say this that for the second letter as I construe it there couldn't have been any consideration because Mr. Conner was already bound to represent him to the best of his ability.
Speaker: For an unliquidated fee, unliquidated fee (Voice Overlap) --
John B. Ogden: For a -- for a reasonable compensation.
Speaker: And people's ideas, what is reasonable are very wide sometimes particularly --
John B. Ogden: Yes.
Speaker: -- when it comes to lawyer's fees in this (Voice Overlap) --
John B. Ogden: But surely --
Speaker: -- contracts simply liquidated what that amount was.
John B. Ogden: If the Court please, I want to say though, I have a case here that is very similar to it and it said that that modification, any modification of an existing contract, I've got the case cited right here, any modification of it must be supported by a consideration just like any other contract.
Speaker: That's what I'm suggesting to you that a liquidation of an unliquidated amount is consideration on both sides in fixing --
John B. Ogden: Well, I don't --
Speaker: -- liquidating what is theretofore uncertain.
John B. Ogden: Well, if the Court please I just say this to the Court that I have cited that case there on that point. Now, then so I feel like that under the Haunstein case in Oklahoma and the many other cases and the general authority throughout the United States is that the lawyer, he just can't make any contract with him for anything except the reasonable fee and he's already have that so therefore he couldn't -- he couldn't --
Hugo L. Black: You mean that the lawyer can't make a contract for a fee for percentage basis?
John B. Ogden: Yes sir, he can make a contract for fees for up to 50% under Oklahoma law, but to make a contract with his client that must be done before the relationship of attorney and client exists. Now, that's what the Haunstein case said. That was the very facts in that case.
Hugo L. Black: I believe you'd do better if you stick to federal law as Justice Harlan suggested.
John B. Ogden: Yes, I think that's --
Hugo L. Black: What -- you have a case where they -- that if you hadn't filed a declaratory judgment, what would they have sued you on?
John B. Ogden: They would have sued us for a reasonable fee.
Hugo L. Black: Would they have sued you for on the contract?
John B. Ogden: Yes sir, they would have.
Hugo L. Black: And you would've had sued against you on a contract?
John B. Ogden: Yes sir, that's correct.
Hugo L. Black: You chose however to go in and ask for declaratory judgment?
John B. Ogden: That's correct, if Your Honor please.
Hugo L. Black: That's what happened in the Beacon case?
John B. Ogden: Yes.
Hugo L. Black: And you now have this question whether when you come in for declaratory judgment decide the same issue, you thereby lose the right to trial by a jury the constitutional right to trial by a jury they would've been -- had it -- if they had any sued it on the old way just direct?
John B. Ogden: Yes sir. If Your Honor.
Hugo L. Black: That's the issue.
John B. Ogden: If Your Honor please, the court -- this Court has said that declaratory judgment act doesn't deprive a person of their right to a jury trial.
Hugo L. Black: That's the first time you said it though.
John B. Ogden: Well, I --
Hugo L. Black: As I recall.
John B. Ogden: Well, I cite it in the brief and I didn't say because if the Court please. I felt like it but I've cited the case is here from the Supreme Court. Now, if You Honor --
Potter Stewart: They would've sued you in fact or might well have sued you for specific performance to convey an undivided half interest in that property, in that 160-acre farm.
John B. Ogden: Yes.
Potter Stewart: Now, do you contend there's a right to a jury trial in that kind of a consideration?
John B. Ogden: Yes, there is, if Your Honor please. May I say this to the Court, if they bring a suit for specific personal or real property, it doesn't make any difference which, with -- that we're entitled to a jury trial. Now, of course (Voice Overlap) --
Potter Stewart: To convey an undivided half interest in that real property?
John B. Ogden: Yes sir.
Potter Stewart: You're entitled to a jury trial?
John B. Ogden: They're seek -- yes.
Potter Stewart: Under what law?
John B. Ogden: Well, under the federal and state both, I want to read it since the court said that --
Hugo L. Black: Who said that?
John B. Ogden: Since the Court asked me that.
Hugo L. Black: Well, who said that? What state -- what federal decision is it?
John B. Ogden: Well, I -- if the Court please, I can find it but it just take (Voice Overlap) --
Potter Stewart: I doubt if you could find it.
John B. Ogden: Sir.
Hugo L. Black: I don't think you can. I doubt if you can.
John B. Ogden: If they sue for specific property?
Potter Stewart: Or specific performance to convey an undivided half interest in that 160-acre farm in accordance with the agreement of September or whatever year it was?
John B. Ogden: Well, if Your Honor please I'd like to read this. This is Title 12, Article 556 of the Oklahoma statute annotated and I'll give my reason for reading just a moment. Issue of law must be tried by the Court unless referred. Issues of fact arising in action for the recovery of money or of specific real of personal property shall be tried by a jury unless a jury is waived (Voice Overlap).
Potter Stewart: That's the Oklahoma law, isn't it?
John B. Ogden: That statute, yes sir.
Potter Stewart: Now, then --now you told us throughout your argument that federal law should apply.
John B. Ogden: Yes, that's my opinion, if the Court please, it's always been and still is and I certainly don't change it now. But let me just say this to the Court as I view it, they are seeking here half of the farm and they're seeking that half of the farm because of the fact and you asked about the value of it, I don't know any more than he does but when this suit was filed shortly thereafter the Court made an order and tied up all the money. And it's in the hands of the Court and the Circuit Court releases some to Mrs. Simler at one time, but regardless of that if the Court please they are seeking here money, they want half for the money that's accumulated all through, they want half for the land. Now, then whether or not I'm entitled to a jury trial in that case, I think I am but under this opinion right here from this Court in the Dairy Queen case and I marked it but I couldn't find it because I'm kind of in hurry there but the Dairy Queen case here is what the -- this Court said, I'm reading from a divided opinion. Petitioner's primary defense to charge a breach of contract that is the contract that modified the subsequent oral brief presents purely a legal question having nothing whatever to do with either innovation as a district judge suggests or reformation as he suggest to the respondent here. Such a defense goes to question on just what under the law the contract between the respondent and petitioner is and in an action to collect the debt for breach of a contract between these parties, the petitioner has a right to have a jury determine not only whether the contract has been breached and the extent of the damages if any, but also just what the contract is. Now, if the Court please if this contract was entered into without consideration that would be a question of fact for the jury to pass upon. Now, then if the Court please, if he was overreached and it became a question of fraud that the jury found he committed fraud in securing this second letter. That is a question for a jury to pass upon and this Court, the Supreme Court of United States and all of the federal courts so far as I've been able to find have always held that that is a question for the jury to pass upon. So as Justice --
Arthur J. Goldberg: [Inaudible]
John B. Ogden: Yes, sir surely.
Arthur J. Goldberg: [Inaudible]
John B. Ogden: That's exactly right, if Your Honor please --
Arthur J. Goldberg: [Inaudible]
John B. Ogden: Yes, sir. And --
Arthur J. Goldberg: [Inaudible]
John B. Ogden: Yes, sir.
Arthur J. Goldberg: [Inaudible]
John B. Ogden: Obtained.
Arthur J. Goldberg: [Inaudible]
John B. Ogden: That is correct.
Arthur J. Goldberg: [Inaudible]
John B. Ogden: No, sir.
Arthur J. Goldberg: [Inaudible]
John B. Ogden: That's right. Now, if Your Honor please may I say this? This Court said and I can't just tell you right now because it would just take too long to look it up, but this Court has said that we have a right when we bring a suit, we bring the suit and they can't come in and file some -- any kind of appeal. They won't do any claim of equitable relief and deprive us of the right under the Constitution of the United States a jury trial. They just don't have a right to do that. This Court said that and so in several cases the --
Potter Stewart: The whole question here is whether you do have a right under the Constitution of the United States to a jury trial. If you do obviously nobody can deprive you of it.
John B. Ogden: Yes sir. Now, then if Your Honor please, if we just had my petition, our complaint here before the Court there wouldn't be any question whether we would be entitled to a jury trial. Then, because it just asked for -- confirm what a reasonable fee is in this case then when they filed their answer and claimed half for the land and half for the money impounded in the hands of the Court, they're suing for money. Then we reply to that and we say that there was no consideration for that and then we also say if the Court please, it was obtained by fraud in both factual and constructive and as therefore going for that reason. Now, if the Court please in closing, I guess I don't really know I've got to kind of add some matters noted here but it's kind of hard to -- you know the -- to get all these matter before the Court when you kind of break the general line of your presentation but I want to say this in closing, if Your Honor please, this is not a suit for a specific performance of a contract. Mr. Simler -- Mr. Conner in his response or answer in the cross complaint, he says this second letter is not a contract at all. He says that's not a contract. He said that was only entered into for the purpose of determining or clarifying what a reasonable fee was. That's in his answer. I can show you the book page. So he says that wasn't the contract; that was just for the letter for the purpose. Now, just to make it kind of foolish, maybe bring out -- suppose he meet Mr. Simler out in the hall and said, “Mr. Simler what do you figure a reasonable fee is?” We got -- he say, “Well, I guess 50% will be reasonable.” Well that wouldn't make a contract. Now, that's all the letter is, just not -- nothing has ever been signed by Mr. Conner, the second letter or the first either. So, just because they put in a letter that Mr. Simler thought 50% was reasonable.
Hugo L. Black: Suppose it is a contract --
John B. Ogden: Assume that it is --
Hugo L. Black: Assume it is --
John B. Ogden: Yes.
Hugo L. Black: -- and get the argument --
John B. Ogden: That's right.
Hugo L. Black: What would he sue on?
John B. Ogden: What would Mr. Conner sue?
Hugo L. Black: No, what was his complaint claimed?
John B. Ogden: Yes, complaint claimed if Your Honor please, that on the 13th day of July and they're into the contract for a reasonable fee.
Hugo L. Black: What -- but no, no that's not that contracted you're suing on.
John B. Ogden: I didn't quite finish that yet and then he would allege further that on the 25th, that's what he puts in his answer for the purpose of clarifying that contract that Mr. Simler agreed that 50% was a reasonable fee.
Hugo L. Black: What would he sue you for?
John B. Ogden: He'd sue --
Hugo L. Black: But he sue you, is it as a suit for a specific performance --
John B. Ogden: No sir.
Hugo L. Black: -- when a man sues another on a contract to make him pay what he agreed to pay?
John B. Ogden: I thought it would sue for one half of the property and the money up there in the hands of the Court that would be what I'd sue for if I was presenting the matter to --
Hugo L. Black: But – [Inaudible] suit for the dead?
John B. Ogden: Well, he didn't do that though in this case for. If he sued, you can look at his answer from the cross complaint that he sued for one half of the property and one half of to proceeds that accumulated during that period of time. That's what he sued for in this case.
Hugo L. Black: That's what he said up in his answer?
John B. Ogden: Yes sir, that's what he said up in his answer and we replied to it. But -- and we replied to it and set forth the reasons that there was not -- that he wasn't entitled to it. We want him to have a reasonable fee but on the jury to tell us what a reasonable fee was? Now then, if the Court please, I don't have any way of knowing too well but now this Court said and I just mentioned to you just a moment ago that a declaratory judgment act preserves the right to a trial by juries and then the Court further says there's question of fraudulent misrepresentation was decisive of issues both and insures action for judgment on declaring live policies void because of fraudulent misrepresentation. And seeking recession, now I'd like the Court to note this and cancellation of policies and in beneficiary counterclaim for face amount of policies and beneficiary could not be deprived of his constitutional right to a jury trial on such issues by suspending action on counterclaim and trying complaint for declaratory judgment without a jury. And then of course the Beacon case referred to next and I have a great number of federal cases but there's one if Your Honor please, which is a lawyer fee case, a federal case. And it's found in 300 F.2d on page number 1, and I have it right here but I won't have the time to read it.
Earl Warren: No, your time is up.
John B. Ogden: Is it up? If Your Honor please, would it be -- I don't know because I know, at this late they had asked to file a reply brief. The reason I say that is because the fact that I didn't have an opportunity to inform that, I didn't feel like it. I filed an application and written application for it.
Potter Stewart: I'd have the right to file (Inaudible) --
Speaker: [Inaudible]
Earl Warren: Of course, you were denied. I should get you a fair trial.
John B. Ogden: I'd do it as soon as I get home, if Your Honor please.
Earl Warren: You may.