SIMLER v. CONNER

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Argument of John B. Ogden

Justice Hugo L. Black: Number 59, A. J. Simler, Petitioner, against Leslie E. Conner.

Mr. 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.

Justice William O. Douglas: I suppose that might be of interest to the jury but --

Mr. 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.

Justice Potter Stewart: Is that opinion in the record here?

Mr. 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 --

Justice Potter Stewart: I couldn't seem to find it in the --

Mr. John B. Ogden: Yes sir.

Justice Potter Stewart: -- record.

Mr. 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 --

Justice John M. Harlan: [Inaudible] so far in your action.

Mr. John B. Ogden: I asked for the court in the declaratory judgment action --

Justice John M. Harlan: Yes.

Mr. John B. Ogden: -- to determine how much lawyer fee we owed Mr. Conner if any.

Whether it was (Voice Overlap) --

Justice John M. Harlan: Didn't you -- didn't you have a contract with Mr. Conner for a contingent fee?

Mr. John B. Ogden: Yes, sir, we did, I'll get --

Justice John M. Harlan: And you claim that the contingent fee contract was induced by a fraud or was --

Mr. John B. Ogden: Yes.

Justice John M. Harlan: -- void as a matter of law?

Mr. 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 --

Justice John M. Harlan: Alright.

Mr. 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.

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.

Justice Arthur J. Goldberg: [Inaudible]

Mr. 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.

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 --

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: It's in the -- it's in the response to the answer in cross complaint.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes, the response, if Your Honor please, I could show you at the beginning on the --

Unknown Speaker: [Inaudible]

Mr. John B. Ogden: Here.

It's rather lengthy and --

Unknown Speaker: [Inaudible]

Mr. 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.

Justice Hugo L. Black: [Inaudible]

Mr. 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.

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Hugo L. Black: And that he replied instead of the counterclaim.

Mr. John B. Ogden: He replied instead of the counterclaim and asked for hype of everything.

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Filed --

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Well, we called it --

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Sure, yes sir, on reply, the counterclaim of the defendant.

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

Unknown Speaker: [Inaudible]

Mr. 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 --

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: Yes sir, when it filed the complaint --

Justice Hugo L. Black: He filed a complaint?

Mr. John B. Ogden: Yes sir.

Then when I filed this --

Justice Hugo L. Black: [Inaudible] at the trial?

Mr. John B. Ogden: No sir.

Justice Hugo L. Black: And you would [Inaudible]

Mr. John B. Ogden: How much will --

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: That's correct, if Your Honor please.

Justice Hugo L. Black: Now, when did they -- when did the court ruled he was not entitled to a review?

Mr. 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 --

Justice Hugo L. Black: [Inaudible] on the complaint?

Mr. 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.

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 --

Justice Potter Stewart: But the Court of Appeals' order had provided for the possibility of a summary judgment?

Mr. John B. Ogden: Yes, it had.

It said, if the Court please --

Justice Potter Stewart: Yes.

Mr. 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 --

Justice Potter Stewart: What?

Mr. John B. Ogden: -- and he could do that if it he justified it or something like that.

Justice Potter Stewart: Yes.

Mr. 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.

Justice Hugo L. Black: [Inaudible]

Mr. John B. Ogden: It's whether we're entitled to a jury trial but if the Court please --

Justice Hugo L. Black: What do you claim -- and now you claim [Inaudible]?

Mr. 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.

Justice Hugo L. Black: What do you think is it governed by?

Mr. John B. Ogden: That's governed by the Seventh Amendment of the Constitution of the United States.

Justice Hugo L. Black: What do they claim?

Mr. John B. Ogden: Well, they claim it's governed by a state law and --

Justice Hugo L. Black: [Inaudible] governed by a state law.

Mr. 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.

Justice Potter Stewart: I didn't understand that to be the claim of your adversary in the brief.

Mr. 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.

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 --

Unknown Speaker: [Inaudible]

Mr. John B. Ogden: We agree on that, but if --

Unknown Speaker: [Inaudible]

Mr. 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 --

Justice Hugo L. Black: [Inaudible]

Mr. 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.

Unknown Speaker: [Inaudible]

Mr. 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.

Justice William O. Douglas: Well, if this is a matter of federal law, why do you suppose this Court remanded to the --

Mr. John B. Ogden: If the Court please, that was the --

Justice William O. Douglas: -- the Court of Appeals for consideration in light of a state case?

Mr. 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 --

Justice William O. Douglas: Well, there -- there were three of us dissented I think.

Mr. 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 --

Justice Hugo L. Black: I know, but the other side seems to agree with you now, aren't they?

Mr. John B. Ogden: They agree with me now, but not then.

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

Unknown Speaker: [Inaudible]

Mr. 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.

Justice Arthur J. Goldberg: [Inaudible]

Mr. 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.

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.

Justice Hugo L. Black: Well, are you now -- are you arguing now that it should be governed by the law of Oklahoma?

Mr. John B. Ogden: No sir.

I'm not --

Justice Hugo L. Black: Why do you cite that Oklahoma case?

Mr. 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.

Justice Hugo L. Black: But how do you think the right to trial by a jury is good, by the complaint?

Mr. John B. Ogden: Goes about the nature --

Justice Hugo L. Black: [Inaudible] that come later.

Mr. 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.

Justice Hugo L. Black: That it brought -- the nature of the action that is brought?

Mr. 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 --

Justice Hugo L. Black: [Inaudible]

Mr. 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.

Unknown Speaker: [Inaudible]

Mr. John B. Ogden: Yes sir, just the syllabus, I'm reading the syllabus 4 now.

Unknown Speaker: [Inaudible]

Mr. John B. Ogden: Yes, but I know this --

Justice William J. Brennan: You can't read this from the opinion.

Mr. 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.

Justice Hugo L. Black: [Inaudible]

Mr. 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.

Unknown Speaker: [Inaudible]

Mr. 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 --

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: He had to pay anymore, that's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: That was on the orders of the court.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes.

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

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. 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.

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.

Justice Hugo L. Black: Mr. Ford.

Argument of Peyton Ford

Mr. 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.

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.

Print this transcript Transcript: 

Argument of Peyton Ford

Mr. 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.

Justice 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?

Mr. Peyton Ford: If it wasn't agreement, agreement the first letter wasn't needed.

Justice Potter Stewart: Now, there's a consideration for the first letter anyway.

Mr. Peyton Ford: And a consideration for this.

Justice Potter Stewart: What was it?

Mr. 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.

Justice Byron R. White: [Inaudible]

Mr. Peyton Ford: Yes.

In my --

Justice Byron R. White: [Inaudible]

Mr. Peyton Ford: Well, he is talking about the --

Justice Potter Stewart: [Inaudible]

Mr. 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.

Justice John M. Harlan: 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.

Mr. Peyton Ford: That's right.

Justice John M. Harlan: The cause of action, federal law applies throughout, that's your premise?

Mr. Peyton Ford: That's my premise.

Justice John M. Harlan: So that the Southard and the case for these purposes decide the point?

Mr. Peyton Ford: So far as the substantive law of the state though concerning when you reached a --

Justice John M. Harlan: Right.

Mr. Peyton Ford: -- the reasonableness of --

Justice John M. Harlan: In other words (Voice Overlap) --

Mr. Peyton Ford: -- 20 more contract --

Justice John M. Harlan: -- 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?

Mr. Peyton Ford: Yes sir.

Justice John M. Harlan: That's what I thought.

Justice 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) --

Mr. Peyton Ford: I meant to bring that up (Voice Overlap) --

Justice 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.

Mr. Peyton Ford: Under state law.

Justice Potter Stewart: Under state law.

Mr. 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.

Justice John M. Harlan: 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 --

Mr. Peyton Ford: Yes, if you want to follow the doctrine of constitution (Inaudible) --

Justice John M. Harlan: It's squarely, isn't it?

Mr. Peyton Ford: It's squarely here but if the summary judgment was properly granted, you don't reach it.

Justice John M. Harlan: Yes, but summary judgment was granted on the first door around the state court and Court of Appeals reversed (Voice Overlap) --

Mr. 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.

Justice John M. Harlan: But the fact is that the case since their first conversion by the Court of Appeals was tried on the merits.

Justice Potter Stewart: It never been tried on there?

Mr. Peyton Ford: Never been tried.

Justice John M. Harlan: Wasn't it?

Mr. Peyton Ford: No sir.

They sent it back to be tried and (Voice Overlap) --

Justice John M. Harlan: I beg your pardon.

Yes, I see.

Yes, you're quite right.

Justice Tom C. Clark: You say there's no conflict in the facts?

Mr. Peyton Ford: That's right.

Justice Tom C. Clark: That therefore the summary judgment was properly entered.

Mr. Peyton Ford: That's right.

Justice Potter Stewart: But the Court of Appeals –-

Justice Tom C. Clark: [Inaudible] then you say that not entitled to a jury under federal law anyway?

Mr. 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.

Justice Tom C. Clark: What about the fraud issue?

Mr. 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.

Justice Byron R. White: Is this your only -- is your only answer to Justice Harlan's question [Inaudible] is an allegation cause?

Mr. Peyton Ford: The mere allegation --

Justice Byron R. White: [Inaudible]

Mr. Peyton Ford: A mere allegation of ultimate facts --

Justice Byron R. White: Yes, but the (Voice Overlap) --

Mr. Peyton Ford: -- and conclusions.

Justice 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]?

Mr. 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 --

Justice William J. Brennan: Now, let's see now, that the court was -- I haven't looked at these affidavits, are they in the record?

Mr. Peyton Ford: Yes.

Justice William J. Brennan: On the motion for summary judgment?

Mr. Peyton Ford: Yes.

Justice William J. Brennan: Were the facts that Mr. Ogden pleaded, he told us yesterday require to the counterclaim, were those facts developed in affidavit?

Mr. Peyton Ford: They have simply didn't exist in the affidavit.

Justice William J. Brennan: You mean they were not in the affidavit?

Mr. Peyton Ford: Not as he stated, no.

Justice 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?

Mr. Peyton Ford: That's an equitable action, certainly.

Justice 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]?

Mr. Peyton Ford: Without to --

Justice Byron R. White: [Inaudible]

Mr. 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.

Justice John M. Harlan: 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.

Mr. Peyton Ford: Yes.

Justice John M. Harlan: We'd have to reverse the Court of Appeals' determination that there was a triable issue of fact?

Mr. Peyton Ford: Yes, sir.

Justice 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.

Justice Hugo L. Black: What is the basic dispute between you and [Inaudible]

Mr. Peyton Ford: That's such a simple question.

I don't know why I can't answer it.

Justice 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?

Mr. Peyton Ford: Yes sir.

Justice Hugo L. Black: That's the basic dispute between you?

Mr. Peyton Ford: Yes sir.

Justice Hugo L. Black: What about common law action of this type, who tries that?

Mr. 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 --

Justice 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?

Mr. 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%.

Justice Hugo L. Black: What was the dispute set up in the complaint?

Mr. Peyton Ford: The original complaint was an action for declaratory judgment to find out how much -- who owed who and how much.

Justice Hugo L. Black: Who owed who?

Mr. Peyton Ford: And how much.

Justice 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?

Mr. Peyton Ford: I would say so but --

Justice 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?

Mr. Peyton Ford: Well, if it is in nature of accounting, it could be equitable.

Justice Hugo L. Black: Well, no question here that you had to have any accounting, is it?

Mr. Peyton Ford: Yes, there is an accounting question.

Justice Hugo L. Black: There's an accounting, was that the basic from which you are claiming that it was not triable by a jury?

Mr. 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).

Justice 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?

Mr. 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.

Justice William J. Brennan: But the second -- second one is set aside.

Mr. Peyton Ford: No.

Set aside.

Justice William J. Brennan: On the basis (Voice Overlap) --

Mr. Peyton Ford: And that's an equitable question.

Justice 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?

Mr. Peyton Ford: No, I don't think so in this case because the very --

Justice Hugo L. Black: And in any case if this --

Mr. Peyton Ford: Well, there's a variation --

Justice Hugo L. Black: Completing it up like this.

Mr. 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.

Justice 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?

Mr. 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 --

Justice 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?

Mr. Peyton Ford: Yes, I'd say that.

Justice Hugo L. Black: [Inaudible]

Mr. Peyton Ford: I'm sure.

Have a lot to do with it.

Justice 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?

Mr. Peyton Ford: [Inaudible]

Justice Byron R. White: [Inaudible]

Mr. 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.

Justice Byron R. White: [Inaudible]

Mr. Peyton Ford: If you can't sue -- you can't sue --

Justice Byron R. White: [Inaudible]

Mr. 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.

Justice William J. Brennan: 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 --

Mr. Peyton Ford: I don't think so.

Justice William J. Brennan: How do you distinguish them?

Mr. 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 --

Justice William J. Brennan: 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?

Mr. Peyton Ford: Yes, there are several.

There was -- the Moore citation I gave you had several cases.

I don't have them --

Justice William J. Brennan: Are they decisions of this Court?

Mr. Peyton Ford: Yes, sir.

Justice William J. Brennan: I don't think that certainly state facts; that the reason wasn't in my state.

Mr. 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.

Justice Byron R. White: Page 29 of your brief?

Mr. 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.

Justice Hugo L. Black: Do you think that's consistent with Beacon and Dairy Queen?

Mr. Peyton Ford: Sir.

Justice Hugo L. Black: Do you think Judge Friendly's opinion is consistent with Beacon and Dairy Queen?

Mr. 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.”

Argument of John B. Ogden

Mr. 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.

Mr. 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.

Justice John M. Harlan: How much money is involved in this in addition to attorney's fee?

Rebuttal of Peyton Ford

Mr. 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 --

Justice John M. Harlan: This is an oil situation?

Mr. Peyton Ford: And it's (Voice Overlap) --

Justice John M. Harlan: [Inaudible]

Mr. 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.

Justice Hugo L. Black: Does the record indicate how much it's worth?

Mr. Peyton Ford: I would -- from half a million to 400,000.

Justice Hugo L. Black: And the claim -- there's difference between what's a reasonable fee and what's presented to that trial?

Mr. Peyton Ford: Half of it.

Justice Hugo L. Black: Half of it?

Justice John M. Harlan: That is about $250,000?

Mr. Peyton Ford: Of course, there are some -- some didn't pay that would have to be accounted.

Justice John M. Harlan: Yes, sure.

Justice Potter Stewart: Some $90,000 had been paid, isn't it?

Mr. Peyton Ford: I don't know what the exact (Voice Overlap) --

Justice Potter Stewart: [Inaudible]

Mr. 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%.

Justice Potter Stewart: Of Mr. Conner's 50%?

Mr. Peyton Ford: Yes.

Justice Hugo L. Black: Aside from this litigation over the fee, what other litigation you have now?

Mr. 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 --

Justice Hugo L. Black: United States Court of Appeals?

Mr. 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.

Rebuttal of John B. Ogden

Mr. 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.

Justice John M. Harlan: [Inaudible] federal law governs this question.

Mr. John B. Ogden: Yes, that's right.

Justice John M. Harlan: So that this is the --

Mr. John B. Ogden: Sure, they --

Justice John M. Harlan: -- the point.

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

Justice John M. Harlan: For an unliquidated fee, unliquidated fee (Voice Overlap) --

Mr. John B. Ogden: For a -- for a reasonable compensation.

Justice John M. Harlan: And people's ideas, what is reasonable are very wide sometimes particularly --

Mr. John B. Ogden: Yes.

Justice John M. Harlan: -- when it comes to lawyer's fees in this (Voice Overlap) --

Mr. John B. Ogden: But surely --

Justice John M. Harlan: -- contracts simply liquidated what that amount was.

Mr. 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.

Justice John M. Harlan: That's what I'm suggesting to you that a liquidation of an unliquidated amount is consideration on both sides in fixing --

Mr. John B. Ogden: Well, I don't --

Justice John M. Harlan: -- liquidating what is theretofore uncertain.

Mr. 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 --

Justice Hugo L. Black: You mean that the lawyer can't make a contract for a fee for percentage basis?

Mr. 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.

Justice Hugo L. Black: I believe you'd do better if you stick to federal law as Justice Harlan suggested.

Mr. John B. Ogden: Yes, I think that's --

Justice 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?

Mr. John B. Ogden: They would have sued us for a reasonable fee.

Justice Hugo L. Black: Would they have sued you for on the contract?

Mr. John B. Ogden: Yes sir, they would have.

Justice Hugo L. Black: And you would've had sued against you on a contract?

Mr. John B. Ogden: Yes sir, that's correct.

Justice Hugo L. Black: You chose however to go in and ask for declaratory judgment?

Mr. John B. Ogden: That's correct, if Your Honor please.

Justice Hugo L. Black: That's what happened in the Beacon case?

Mr. John B. Ogden: Yes.

Justice 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?

Mr. John B. Ogden: Yes sir.

If Your Honor.

Justice Hugo L. Black: That's the issue.

Mr. 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.

Justice Hugo L. Black: That's the first time you said it though.

Mr. John B. Ogden: Well, I --

Justice Hugo L. Black: As I recall.

Mr. 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 --

Justice 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.

Mr. John B. Ogden: Yes.

Justice Potter Stewart: Now, do you contend there's a right to a jury trial in that kind of a consideration?

Mr. 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) --

Justice Potter Stewart: To convey an undivided half interest in that real property?

Mr. John B. Ogden: Yes sir.

Justice Potter Stewart: You're entitled to a jury trial?

Mr. John B. Ogden: They're seek -- yes.

Justice Potter Stewart: Under what law?

Mr. John B. Ogden: Well, under the federal and state both, I want to read it since the court said that --

Justice Hugo L. Black: Who said that?

Mr. John B. Ogden: Since the Court asked me that.

Justice Hugo L. Black: Well, who said that?

What state -- what federal decision is it?

Mr. John B. Ogden: Well, I -- if the Court please, I can find it but it just take (Voice Overlap) --

Justice Potter Stewart: I doubt if you could find it.

Mr. John B. Ogden: Sir.

Justice Hugo L. Black: I don't think you can.

I doubt if you can.

Mr. John B. Ogden: If they sue for specific property?

Justice 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?

Mr. 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).

Justice Potter Stewart: That's the Oklahoma law, isn't it?

Mr. John B. Ogden: That statute, yes sir.

Justice Potter Stewart: Now, then --now you told us throughout your argument that federal law should apply.

Mr. 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 --

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes, sir surely.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: That's exactly right, if Your Honor please --

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes, sir.

And --

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: Obtained.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: That is correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John B. Ogden: No, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. 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 --

Justice 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.

Mr. 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.

Justice Hugo L. Black: Suppose it is a contract --

Mr. John B. Ogden: Assume that it is --

Justice Hugo L. Black: Assume it is --

Mr. John B. Ogden: Yes.

Justice Hugo L. Black: -- and get the argument --

Mr. John B. Ogden: That's right.

Justice Hugo L. Black: What would he sue on?

Mr. John B. Ogden: What would Mr. Conner sue?

Justice Hugo L. Black: No, what was his complaint claimed?

Mr. 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.

Justice Hugo L. Black: What -- but no, no that's not that contracted you're suing on.

Mr. 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.

Justice Hugo L. Black: What would he sue you for?

Mr. John B. Ogden: He'd sue --

Justice Hugo L. Black: But he sue you, is it as a suit for a specific performance --

Mr. John B. Ogden: No sir.

Justice Hugo L. Black: -- when a man sues another on a contract to make him pay what he agreed to pay?

Mr. 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 --

Justice Hugo L. Black: But – [Inaudible] suit for the dead?

Mr. 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.

Justice Hugo L. Black: That's what he said up in his answer?

Mr. 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.

Chief Justice Earl Warren: No, your time is up.

Mr. 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.

Justice Potter Stewart: I'd have the right to file (Inaudible) --

Justice John M. Harlan: [Inaudible]

Chief Justice Earl Warren: Of course, you were denied.

I should get you a fair trial.

Mr. John B. Ogden: I'd do it as soon as I get home, if Your Honor please.

Chief Justice Earl Warren: You may.