¶1dissenting. Mrs. Sarah Townsend, widow, and Joseph Townsend, as the son and only heir at law of M. Q. Townsend, deceased, who died intestate, each had an interest in the estate of the deceased, and especially in certain city property known as the “Fair Ground Property.”
¶2Mrs. Townsend claimed that Joseph Townsend owed her the sum of $3,750, and brought suit against him in the Pulaski chancery court. She was represented by Messrs. Ratcliffe1 & Fletcher, attornej's, and Joseph Townsend was represented by Mr. W. J. Terry, who was the administrator of the estate of M. Q. Townsend, as well as attorney, as I understand the matter.
¶3TTp to this time E. S. & L. C. Maloney do not appear to have had anything to do or connection with the other parties, and never afterwards had as attorneys, as I can see from the record.
¶4While Mrs. Sarah Townsend and Joseph Townsend stood in this attitude toward each other and with reference to the estate of M. Q. Townsend, Joseph Townsend, sometime in the early part of November, 1898, saw the Maloneys, who were partners in the practice of law, and also dealt in land and other speculations, and engaged them to procure him a loan of $3,000. He had, it seems, already procured a loan of $7,000, and, to prevent him from further incumbering the property of the estate coming to him, Mrs. Townsend sued out an injunction against him, and obtained a restraining order for the purpose aforesaid. This prevented the Maloneys from negotiating the loan of the $3,000, Joseph Townsend being unable to procure the same. Mrs. Townsend says in her testimony, in substance, that, finding Joseph was about to mortgage the Fair Ground property to secure this loan, and his guardian being about to make a final settlement with him, she filed the bill for the injunction aforesaid, to save said $2,750.
¶5Afterwards Mrs. Townsend and Joseph made a compromise of the matter. Just what the terms of the compromise were, I am unable to discover. She states that at this juncture one of the Maloneys came to her, and asked what was - the least she would take for her claim against Joseph Townsend. She agreed with him to take $1,500, she to pay him $75 out of the same for his services, — presumably services on her behalf. Thereupon, in furtherance of the trade between her and the Maloneys, she executed and gave them the receipt marked “Exhibit A” in the pleadings, for the nominal consideration of $1 and other valuable considerations, which she states was in full of her claim against Joseph, and thereupon she assigned and transferred her interest in the said land against him to the Maloneys, releasing all claims against Joseph and his guardian.
¶6The Maloneys put this matter in a somewhat different light, but there is a substantial agreement between them. In response to her question as to how Joseph would pay, Maloney says he informed her that he would make Joseph pay a good deal more than he was giving her. He says also the beginning of this negotiation between him and Mrs. Townsend was that, in a response to a telephone message from her, he called upon her, and in the course of their conversation she informed him of certain offers she had re-, ceived from others for her claim against Joseph, one for $100 and another for $1,250. That the purchase of the claim by him for $1,500 resulted as stated. He denies that he ever told Mrs. Townsend that he was representing Joseph in this matter, or in any other matter than at one time he had been engaged to effect the loan of $3,000 as stated. He says, however, that, seeing an opportunity for making something for himself, he purchased the claim of Mrs. Townsend on account of his firm.
¶7Maloney’s testimony is not contradicted, except in some minor particulars, by any of the parties who were witnesses in the case, and the differences might well have grown out of misunderstanding of what was said on the occasions referred to in the testimony of witnesses.
¶8It is not exactly clear when Maloney ascertained from Joseph Townsend what he was willing to give to settle Mrs. Townsend’s claim against him, whether before or after they had purchased the same from Mrs. Townsend. The only certain effect their dealing with Mrs. Townsend had upon Joseph Townsend, so far as their employment by Joseph to effect the loan was concerned, was that, the Maloneys having bought Mrs. Townsend’s claim against Joseph, they were enabled thereby to transfer to him the estate of his father, free of incumbrance, so that he might effect the desired loan of $3,000.
¶9But the decree in the case is based upon the theory that the Maloneys, in their dealings with Mrs. Townsend, were the agents of Joseph Townsend, and, receiving from him anything in excess of the $1,500 paid Mrs. Townsend, they were acting as trustees for him; that in fact they were trustees of an implied trust for the excess of the $1,850 received from Joseph, and the $1,500 paid Mrs. Townsend. This leaves out, of course, all consideration that the Maloneys were permitted under the circumstances to deal with Mrs. Townsend as purchasers for themselves. I do not think the evidence sustains such a view of the case. The appellants occupied a fiduciary relation in all matters pertaining to the interest of Joseph Townsend in the matter of effecting the loan for hire, for that was all they were engaged to do, but in nothing else. If any case of sharp bargaining were declared to be a trust, universal trade and traffic would inevitably cease. The line of demarcation between the two is well drawn. I think there is no merit in the bill, and of course that equity courts have no jurisdiction.