Cox v. Sullivan , 7 Ga. 144 ( 1849 )

By the Court —

Nisbet, J.

delivering tlie opinion.

[1.] We believe that the Circuit Judge erred in repelling parol evidence of the fact, that the note receipted for. by the defendant was indorsed by John Rawls. The receipt describes a note made by Dempsey J. Justice and Levi Justice. The action was brought to charge the defendant for professional negligence, in damages. On the trial the plaintiff offered to prove by parol, that the note was indorsed by John Rawls, in order to lay the ground-work for proving negligence, in not suing him. The objection made here to the evidence is, that the receipt for the note is in the nature of a written contract, which cannot be varied, contradicted, or added to, by parol. We do not think that the rule as to parol evidence to vary, add to, or contradict a written agreement, applies to this case. There can be no doubt but that an attorney may stipulate in writing with his client as to the extent and terms of his obligations, and when that is done, the parties will be bound by it as the highest evidence (adopted by them) of what their contract is. The parties have not done that in this case. There is no agreement, in writing, as to the extent of the obligations assumed by the defendant. There is no limitation of those obligations as they exist by the general law. The receipt proves the bailment — the delivery of the note for collection — and no more. The plaintiff’s right of action grows out of the relation which the law has established between client and attorney. According to the law regulating that relation, it is the duty of an attorney to collect a note, if necessary, out of an indorser as well as the maker or makers. And where the receipt of the note is established, and there is no contract to limit the attorney’s duties, the extent of his duties is to be ascertained by the facts of the case, and the law of this species of bailment applicable thereto. I state the rule generally to be, that when a note is taken by an attorney for collection, and is indorsed, in the absence1 of any stipulation to the contrary, it is his duty to use the same diligence and skill to collect out of the indorser or any other party legally liable on it, which is necessary to collect out of the makers. Still, it is not true that, in all cases, he is bound to collect out of all the parties on the paper. If, according to the facts of the case, it was manifestly the understanding of the parties, that the indorser, or any other party, should not be pursued, then the attorney is not bound if he fails to pursue that party. As, for example, in case of a note taken here for collection, and indorsed by a person residing without the jurisdiction of the State, and too remote for the personal attention of the attorney, and in all cases standing upon a like footing of reason and justice. The fact of indorsement may be proven, and whether the attorney be bound to proceed against the indorser, under all the circumstances of the case, is to be left to the Court and Jury. If, however, there are no facts or circumstances going to show that it was the understanding of the parties, that an indorser or any other party should not be pursued, then the obligation of the attorney is perfect to pursue, if need be, all the parties. The rule of evidence operates equally in favor of both client and attorney, and may be applied for the benefit of both.

The Court below did not err in charging the Jury, that money raised by an attorney upon a judgment in his own favor, by extraordinary diligence, ought not to be applied by him to the claim of his client in his hands for collection. 'The facts were, that the defendant, having a judgment against the debtor of his client, employed an agent at the cost of one-half his debt, to subject property in one of the remote Counties of the State, and did subject it. Such a contract he could not make for his client without special authority.

[2.] He is bound to the highest honor anil integrity, to the utmost good faith. As a general rule, he will not be permitted to pursue his own interests when they conflict with those of his client. By assuming the trust to collect, ho pledges himself to protect his interest against all others, even his own. Yet, if in the exercise of a diligence beyond th,e powers and obligations of his trust, he realizes a fund out of the common debtor, we know of no rule of Law or Equity which would compel him, at the peril of accountability in damages, to pay it to his client. To appropriate money raised as this was, is no violation of professional hon- or. What facts will constitute professional faith, and fulfil the requirements of professional honor, it would be in vain to attempt to ascertain by any general tests. Each case, in this regard, must be determined by its own facts. Clearly, however, it is the interest of the community, and also of a profession distinguished for its liberal views, its lofty honor, and its great social and moral influence, that the liability of its members, upon the score of good faith, should be subject to an exceedingly stringent rule.

[3.] An attorney is not bound to extraordinary diligence. He is bound to reasonable skill and diligence, and the skill has reference to the character of the busiuess he undertakes to do. He is liable for ordinary neglect. In other words, “ He undertakes for the employment of a degree of skill ordinarily adequate and proportioned to the business he assumes. Spondetperitiam artis. Imperitia culpce adnumeratur. Reasonable skill constitutes the measure of his engagement, and he is responsible for ordinary neglect.” 2 Greenlf. Ev. §144. Story on Bailment, §§431, 432, 433. Ruer vs. Righly, 4 B. & A. 202. Ireson vs. Pearman, 3 B. & C. 799. Hart vs. Frame, 3 Jur. 547. 6 Cl. & Fin. 192. Lanphier vs. Phipos, 8 C. & P. 475. 4 Burrow, 2061. 1 Wheat. Selw. 170. 4 Peters, 172. 2 Watts Serg. 103. Riley, 156. 3 Pike, 75. 15 Mass. 316. 1 Verm. 73.

[4.] The damages' do not necessarily extend to the amount of the debt lost by the attorney’s negligence, but only to the loss actually sustained. 2 Greenlf. Ev. §146. Dearborn vs. Dearborn, 15 Mass. 316. Crooker vs. Hutchinson, 3 Chipm. 117. Huntington vs. Rummill, 3 Day, 390. 3 Bibb, 517.

[5.] We think that the Court erred in saying to the Jury, that the plaintiff — the client — is bound to extraordinary diligence. His diligence, or the want of it, does not in any way affect the liability of his attorney, unless stipulated for by special contract.

Let the judgment be reversed.