Gullett v. Lewis , 3 Stew. 23 ( 1830 )

By JUDGE TAYLOR.

It is a principle of law that will not be controverted, that an agent has no powers, buf such as are granted to him by the principál, and that when he transcends the limits which have been prescribed him, his principal is not bound by his acts; and it is the duty of all persons transacting business with an agent, to know how far his authority extends. An attorney at is the special agent of his client, whose duties, usually are confined to the vigilant prosecution or defence of the suitors rights. By virtue of his engagement as an attorney, he is not authorized to compromise the matter of controversy, to execute a release of his client’s demand, or even to release the responsibility of a witness to his client, that he may be rendered competent.. When a note is placed in the hands-of an attorney at law to collect, the oníy power granted to him is to receive the money if the payor will pay it without, or to enforce its payment by suit. He has no right to dispose of this note in payment of his own debts, or by compromise to receive goods or horses, or any thing but cash in discharge of the payor’s responsibility.

The confidence of the creditor has been extended to him no further than to authorize him to collect 4 money. If then, a debtor makes an arrangement with an attorney at law, in the employ of the creditor, by which he pays any thing else but money, it is not on account of the confidence which has been reposed in the attorney by the creditor, but from the reliance which the debtor himself places'on him. In this instance, we cannot suppose that the defendant considered the plaintiff’s attorney as acting strictly within his authority, as agent for the plaintifij when he made the arrangement with him which has been proved; but that he entered into the agreement, confiding in the attorney’s willingness and ability to pay the money to the plaintiff, to the amount of the debt which the attorney owed to Watkins.

It is contended, however, that the same person was the general agent, as well as the attorney at law of the plaintiff, and that although he was not authorized in the latter character, yet he was in the former to make this arrangement. This would depend entirely upon the extent of his powers as general agent. If he were only authorized to collect debts, &c. due the plaintiff generally, he could have made those collections only in money. We are not informed by ;the testimony how far his authority as general agent extended; but it is deemed unnecessary to consider this subject, as the proof shows that in this instance; he acted in the character of attorney at law; of which the defendant was informed, and that it was as regarded other business of the plaintiff, that he was constituted general agent. I am clearly of opinion, that the defendant could not be exonerated from his liability to the plaintiff by any he may have made with his attorney at law, other than the payment of the money dué on the note, and stick is the opinion of the Court. To support the opinion, see 9 Johnson’s Reports 263, G Sergeant and Lowber 459. The judgment must be reversed and the cause remanded.

By JUDGE SA.FFOLI).

I am unprepared to assent to the doctrine of restriction on the powers of an attorney u.t law to the extent to which the opinion of the majority of the Court has gone. The province of an attorney is to make collection of claims placed in his hands for that purpose, éilher with or without suit as the circumstances of the case may require. The attorney is bound to his client to use faithful exertions to collect the money in a reasonable time, and for this purpose if not otherwise instructed, to proceed by suit, unless payment be voluntarily made. ]f instead of actually receiving the cash from the debtor, the attorney make a different arrangement with him,' by which the debt is settled between them, doubtless the al-tol’ney is responsible to his client in the same manner as though he had received the money. The attorney has the legal custody of the note or other evidence of the debt while empowered to make the collection, and if he instituted suit, he has the absolute control of it, while retained by the party, and if dishonest, may conduct'it greatly to the prejudice of his client, by á compromise of record, dismissal, accepting judgment for less than the amount due, and in many other ways. For malfeasance, he is not only responsible to his client, but is also amenable to the Court; Besides, it is material that the attorney is an agent of his client’s voluntary selection, carrying with him the evidence of the creditor’s confidence in the collection of the debt. I conceive the authority of an attorney at law, or other private agent to be essentially different from that of a ministerial officer. The duties of the latter are peremptorily prescribed by law, so that no individual trust, or confidence is implied in the nature of his agency, nor had the principal of creditor any discretion as to his appointment. In such case, it is just and reasonable that a ('¡'editor’s .claim should not be discharged or defeated until it ho done in the manner prescribed by law. I think it is Only (.0 persons or officers of this description, that the authorities relied on in support of the more restricted power, have reference.

Can it be the law, that an individual agent who has been rent out with the notes, accounts,-&c. of his v;ith the. usual authority to make collections, cannot discharge a debtor in any other way than by the actual receipt of tiie amount in cash. That though the agent and debtor both act with the best faith, .yet no exchange of paper, discount, or authority to pay to another, and the comple-xión of the arrangement, isa valid discharge of the debtor, i conceive the law to be otherwise, and that it is in many respects the same in relation to attorneys at law.

Yet I admit that in either case, when the money has not been paid to the agent or attorney, if the arrangement has not been bona fide, or at least on the part of the debtor, if he has participated in any degree in fraud or collusion to the prejudice of the creditor, or if the agreement has not been consummated, the iirincipal may interpose his authority and resist and annul it. In cases however like the present, where there is no imputation of fraud against the defendant, and the attorney has contracted and agreed, that the payment should be made to another, and-the same has been done to the full amount of the debt, I consider it binding on the principal, and that this judgment should be affirmed.

Judge Ckensiiaw concurred in the- opinion delivered by Judge Saffold.

Reversed and remanded.