Robert & Williams v. Commercial Bank , 13 La. 528 ( 1839 )

Rost, /.,

delivered the opinion of the court.

The plaintiffs claim from the defendants the amount of a check, or bill of exchange, drawn by the said defendants upon the Bank of America, in New-York, and returned unpaid ; they also claim ten per cent, damages and interest, according to the laws of New-York, the premium paid for the bill, the cost of protest in New-York, and postage.

The petition contained the usual averments of demand, protest and notice, and further alleges, that the returned bill was duly presented to the defendants and payment demanded in specie, and upon the refusal to pay, that it was protested, whereby the defendants became liable, under their charter, to pay interest at the rate of ten per cent, per annum, which the plaintiffs also claim, together with the costs of the second protest.

The defendants, by their counsel, came into court, admitted in their answer that they had drawn the bill, and denied all the other allegations of the petition.

After issue joined, a large number of members of the New-Orleans bar, among whom were the counsel for both plaintiffs and defendants, entered into the following agreement:

“ We, the undersigned, members of the bar, agree that we will not fix any case for trial from and after this date, until the first Saturday in November next, nor will we take any step in any case not usually taken in vacation, unless by consent of all parties interested therein. This agreement to bind the undersigned towards each other, but not to any members of the bar who may refuse to sign it.”

During the existence of this agreement, one of the plaintiffs went into court in person, had the case set for trial, discharged his counsel, and intrusted the management of the suit to another, who had not become a party to the agreement.

When the case was called for trial, the defendant’s counsel moved for a continuance, alleging the aforesaid agreement, and stating on oath, that on the faith of.:it they had not prayed for a jury, which, under the regulations of the court, would have had the effect of continuing the case until the month of November following; and also, that their regular counsel had left the state for the summer months.

The authority of an attorney at law extends to all the means necessary to the protection and promotion of the interests of his client, so far as they are affected by the proceedings in court; but he cannot . enter into an agreement with the members of the bar not to try causes for a certain time, •which would be binding on his client, and preclude him from having his cause set for trial, by employing other counsel. An agreement among counsel, that they willnot try causes during the’ summer and early fall months, is not legally binding on the parties to it. If a cause is afterwards set for trial by the original counsel at the instance of the client, the court will disregard his general promise, and allow him to proceed.

The court overruled the motion, and the defendants excepted. Judgment was given in favor of the plaintiffs, agreeably to the prayer of their petition, and the defendants appealed.

We are satisfied that the court did not err in ruling the defendants to trial. Admitting, as decided by this court in the case of Paxton vs. Cobb, 2 Louisiana Reports, 140, that the authority of the attorney extends to every thing necessary to the protection and promotion of the interests intrusted to his care, so far as they are to be affected by the proceedings in the court where he represents his client, it cannot be seriously contended that the agreement entered into in this instance was necessary (o the protection and promotion of the plaintiff’s interest, or that it had any other object than the personal convenience of gentlemen of the bar. It was made with a view not to try cases during the summer months, as had been the custom heretofore, by the joint consent of the bench and the bar. Such an agreement was not legally binding upon the parties to it; and if the original counsel of the plaintiffs had set the cause for trial himself, the court would have disregarded his general promise not to do so, and would have permitted him to proceed. All that the court could have done would have been to protect the defendants from surprise, in consequence of the breach of the agreement. What the original counsel of the plaintiffs could have done, his clients had the right to do. They could take the management of the suit from him at any time, and conduct it in their own way. The motion for a continuance was not made on the ground of surprise. If the regular counsel of the defendants was absent, they had other counsel in court, who appear to have done full justice to their cause; and the allegation that, if it had not been for the agreement, they would have prayed for a jury, and thereby prevented the plaintiffs from recovering what is justly due them until the ensuing fall, cannot be listened to.

The plaintiffs have made out their case satisfactorily, but we think the court erred in allowing the premium paid for the bill, the costs of protest in New-York, and the postage. Although contrary decisions may be found on this subject in the courts of the Atlantic states, the better opinion seems to be there, that the damages allowed on the return of protested bills are inclusive of all charges, and that the plaintiff is entitled to interest on those damages, but can claim nothing for the difference of exchange. However this may be, the rights of the plaintiffs do not rest with us upon immemorial custom; they are defined and fixed by a statute which provides that the drawer of an inland bill, returned unpaid, shall pay and discharge the contents of the bill, together with ten per cent, for the damage thereof. It is evident that the premium paid, the costs of protest, and all other charges, form a part of the damages fixed by law. The statute will bear no other construction; and the rule which it establishes appears to us simple and certain in its application, and well adapted to the interests of commerce.

Damages allowed on the return of protested bills include all charges, such as premium, cost of protest and postage. The holder can claim interest on those damages, hut is not entitled to the difference of exchange.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and, proceeding to give such a judgment as should have been given in the first instance :

It is further ordered, adjudged and decreed, that the plaintiffs recover from the defendants the sum of six thousand two hundred and five dollars, with interest at the rate often per cent, per annum, from the 9th of June, 1837, until paid, on six thousand one hundred and eighty-seven dollars thereof, and the costs of the District Court; those of the appeal to be paid by the plaintiffs and appellees.