Cameron v. Stratton ( 1884 )

Pillsbury, J.

The defendant, in paying the money to Loucks, takes the burden of showing that Loucks was authorized to receive it. This authority may be expressed or implied. 3STo express authority being shown or claimed to exist, the question is whether from the facts and circumstances proven, the law will imply the authority to receive the money in satisfaction of the judgment.

All the cases agree that an attorney of record, retained to prosecute a suit at law for his client, has authority to receive the money recovered, and enter satisfaction of the judgment upon the records of the court, thus completing the judgment roll.

By thus retaining the attorney and allowing'him to'appear as such upon the records, he holds him out to the-defendant as having the authority conferred upon such attorneys, and the defendant will be justified in so dealing with him until he receives actual notice that such authority has been revoked, or is limited by the terms of his contract with his client.

In the absence of notice that the authority of an attorney, appearing as such upon the record of the cause, is limited, the presumption that he possesses all the general powers of an attorney implied by the law from the relation he sustains to the cause in court, as appearing from the record, is conclusive in favor of the party relying upon such evidence of the extent of his authority.®

Does the law, however, imply that a client invests his attorney with any such general power and authority when he is only employed to ,do some particular act in connection- with the cause in court, such as assisting the attorney of record in arguing a demurrer, a pending motion, or even in trying the cause before the jury? We have not been able to find any case that goes to this extent.

Indeed, when an attorney is only called upon to perform some specific service, and does notjidentify himself with the record of the cause, and does only the particular work which he was retained to perform, it would seem that his implied authority to bind his client would be limited to the proper conduct of the specific work intrusted to him.

The law certainly recognizes a distinction between the powers implied from a general retainer, to commence, prosecute and control a cause until judgment is rendered, and for special employment for a special purpose, and upon the full consideration of all the authorities that we can find, bearing upon the question, as well as the reasons upon which they are based, we think the line must be drawn between them as attorneys of record in the cause, and those not of record; that with the former the defendant may safely treat upon all matters within the scope of his apparent authority, until notice to the contrary; with the latter, outside of the particular service in which he is engaged, he deals at the peril of being able to show express authority for the act done by him.

This conclusion is believed to be fully sustained by the following cases: Succession of Bar, 8 La. An. 458; State, for use, etc., v. Hawkins, 28 Mo. 366; McCarver v. Nealey, 1 Green, Ia. 360; Seymour v. Haines, 104 Ill. 557; Weist v. Lee, 3 Yeates (Pa.), 47; Hill v. Mendenhall, 21 Wall. 454.

It is suggested that Cannon, when informed that Loucks had collected the money, went to him to obtain it, and that this was a ratification of his act in receiving the mqney.

We do not think this act can have the effect claimed.

Without doubt he would have taken the money from Loucks, or any one else who chose to pay it, but it can scarcely be said that calling upon Loucks to ascertain the-facts, and even asking him for the money, would make the payment to Loucks rightful, if otherwise it was wrongful.

From the best consideration we have been able to give the case, we are of the opinion that the court below should have overruled the motion to quash the execution, and as this was not done, the order of the court will be reversed and the cause remanded.

Order reversed.