White v. Davidson , 8 Md. 169 ( 1855 )

Le Grand, C. J.,

delivered the opinion of this court.

The record in this case shows the following state of facts: A mercantile firm, under the style and name of Carter &. Washington, in the city of Washington, D. C., were indebted to merchants in the city of Baltimore. Washington, by transfer, as it was alleged, had conveyed the joint assets to secure the payment of his own debts to the exclusion of those of his partner, Garter. The creditors of both, in the city of Baltimore, being desirous of having the property appropriated to the payment of the debts of the firm, appointed a committee in the following words, to superintend and guard their interests:

“We, the undersigned creditors of Carter & Washington, agree to contribute, ratably, our proportion of all expenses incurred, (agreeably to the amount of our claims,) in any legal or other proceedings which have or may be taken by A. B. Davidson, C. A. Hall and T. W. Hall, in reference to the assignment and bill of sale made by R. C. Washington, for the benefit of B. F. Gardner and Franklin Gardner; and we do hereby further agree to indemnify them against all loss for any liabilities assumed, or security given by them or by Henry Carter, of the late firm of Carter & Washington, in any further proceedings which may be taken by him or them, under the advice of their counsel, J. H. Bradley, Esq., of Washington. Given under our hands this 19 th day of June 1846.

Signed, Harrison & Co.,

Davidson &- Sanders,

Hall, Taylor & Co.,

Camper &■ Bruñe,

Marriott, Marye & Co.,

W. H. Harrison & Co.,

Spilker & Alberti.”

In pursuance of this authority Sanders and Thomas W. Hall went to Washington, assuming to act on behalf of their own firms, and as representatives of the other creditors of Carter and Washington, to advise with counsel and take measures to oppose the deed of Washington. They employed Joseph H. Bradley, Esq., as counsel, to file a bill for an injunction and to set aside the deed. Hall returned to Baltimore, leaving Sanders in Washington. Bradley procured the appellant to go on the injunction bond. The injunction was subsequently dissolved, suit instituted on the bond, and a judgment obtained against the appellant for upwards of three thousand dollars.

Mr. Bradley testifies that he requested the appellant, White, to go on the bond, but he positively refused to do so, unless he had some written evidence of indemnity. Bradley then informed him that both Hall and Sanders had distinctly agreed, that if such security could be got, the creditors whom ■ they represented would indemnify the security; that on the same day, White being in the office of the witness, the latter then, in the presence and with the privity and consent of Sanders, wrote the following letter:

«Mr. W. G. W. White,

Dear Sir: — If the judge grants the injunction to-day, Mr. Garter will have to give security of course. It is very important that none of the creditors should join in the bond, for I may want to make them or some of them witnesses. I have their authority for saying, that if this thing is done they will release Garter, and indemnify any one who goes his security. The penalty in the bond will probably be two thousand dollars, or possibly $5000, but the risk cannot be any more than the loss on the postponed sale of goods, and the interest on their value and the expense of keeping them. Under these circumstances I have suggested to Mr. Carter to ask you and Ur. Gunton, as the friend of Mr. Davidson, (or some other gentleman here,) to join him in the bond.”

In reply to certain interrogatories propounded to Thomas W. Hall and others on behalf of the appellant, he states in substance, that he, in company with Mr. Davidson, visited Washington city, and there endeavored to get Carter to take legal measures to have set aside the deed of Washington, and, as an inducement, promised to procure a release from his firm and that of Davidson &> Sanders, of all liability for what he was indebted to them. That Sanders, who was then the partner of Davidson, went to Washington without any appointment from the creditors of Carter Sp 'Washington constituting him their agent, for the purpose of taking the place of his partner, the said Davidson. He also denies that any arrangement in regard to the injunction or security obtained for it was assented to by him or his colleagues, Messrs. Davidson and Carter A. Hall, other than that of which the creditors were informed by Sanders, to wit: that Carter should file the bill and find the security, provided the creditors would release him unconditionally and pay the fee of Mr. Bradley.

The answer of Carter A. Hall and that also of Alexander B. Davidson explicitly denies the authority of Sanders to bind the creditors as he sought to do, according to the testimony of Bradley.

This statement of the facts is sufficiently full to present the questions of law arising out of the case.

The theory of the appellant’s case is simply this: — he claims to be indemnified for his loss because of the recovery had against him on his bond: first, because of a specific contract to that effect; and second, that the employment of Bradley, as counsel, to file a bill for an injunction necessarily carried with it authority to do all things essential to its procurement, and, if to such end, a bond was indispensable, be had the right to promise an indemnity to any one who should become security on it, which w'ould be binding on those whom he represented.

As to the first proposition: it involves a question of fact only, to wit, the existence of the contract. Bradley states that Thomas W. Hall and Sanders authorized it; Hall on the other hand denies it. From Sanders we have no response except that which is detailed in the answers of the two Halls and Davidson. Mr. Bradley states that Thomas W. Hall, at an interview had between him, witness and Sanders, “produced a paper and said they were authorized by the creditors who signed that paper to come to Washington and employ said Bradley to enjoin the sale, which was advertised to take place.” He did not, however, “read said paper or see the names signed to it.” The only written authority to anyone to superintend and manage the rights and interests of the Baltimore creditors, of which there is any evidence, is that bearing date the 19th day of June 1846. This must have been the one produced by Thomas W. Hall, and had Mr. Bradley examined it he would have seen it conferred no authority whatever on Mr. Sanders to employ counsel, or in any other manner to intermeddle with the business. Unless the parties, sought to be held liable, distinctly authorized him to act, anything he might do would not bind them, unless, on full knowledge, they recognized and adopted his act. There is no proof whatever in the record that they have adopted the act of Bradley in writing to the appellant, and promising him indemnity with the consent and privity of Sanders, as testified to by Bradley. So far from it they expressly deny Sanders ever communicated to them any such promise as that spoken of by Mr. Bradley. In this state of case if the defendants be responsible at all, it must be because the employment of Bradley, as counsel, conferred on him, as such, the right to bind them to hold any one who might be obtained as security on the injunction bond harmless from all loss which might result from the dissolution of the injunction, or because the action of Sanders and Hall, as testified to by Bradley, is binding on tire firms of which they were partners. A consideration of these propositions necessarily assumes that the jury would believe the testimony, of Mr. Bradley instead of that of Mr. Hall, which is in conflict with it.

Assuming then the facts to be as testified to by Mr. Bradley, we are of opinion that the defendants, either in whole or part, are not responsible to tire appellant. The employment of counsel does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who may become security in the progress of the suit. The power of an attorney is very extensive, but it is not equivalent to that of his client. As such, it has been doubted, to say the least of it, by high authority, whether he may make a compromise,-although he may submit a cause to arbitration. Holden and others, vs. Parker, 7 Cranch’s Reports, 434. It is true, if the compromise be bona fide and work no considerable hardship, courts will be slow to disturb it, and they will refuse to do so when it has been acquiesced in with a full knowledge of the facts. In the case before us, there is no evidence the facts were ever communicated to the defendants; so far from it, those of them who have been examined expressly deny all knowledge of the agreement between Bradley and appellant, with sanction and privity of Sanders. It did not necessarily follow, that the issuing of an injunction required a bond; that was a matter resting in the discretion of the judge who was to order it, and if he did require it and security could not he obtained without an assurance of indemnity, the client should have been so notified.

Note by the Reporter. — The case of Woolfolh vs. Baltzell, referred to in argument in this case, was an action of assumpsit by Jacob and Charles Baltzell against Woolfolk, brought in Baltimore county court, in 1834. The fourth count in the nar charges, that defendant, in consideration that plaintiffs, at his request, would sell goods to one Hutchinson on credit, undertook and promised the plaintiffs to guarantee the payment, eventually, to them of the amount of the bill for such goods, and that relying on this promise of defendant, the plaintiffs did sell goods to Hutchinson to the amount of §1187.36, for which he failed to pay, See.

We do not think the action of Hall and Sanders, as testified to by Bradley, binding on the firms of which they were members, uidess they subsequently acquiesced in it. There is not only no proof they ever did so, hut on the contrary, the evidence is distinct and uncontradicted, that they neither authorised or subsequently ratified what was done by Mr. Bradley in so far as his engagement with appellant is concerned.

The question involved in the case is not, strictly speaking, one of the authority of a partner to bind his co-partners, but one of agency. Mr. Bradley was distinctly notified the agency had been created and defined by a written instrument. Had he consulted it, as, perhaps, it was his duty, he would have seen that the agency had been delegated to three persons and not to one. A power to three cannot be executed by one of them; nor is there anything clearer or better established, than that an agent cannot delegate his authority to another, the maxim being delegatus non, potest delegare.

There is no necessity for our examining in detail the prayers, inasmuch as the views we have expressed plainly indicate our opinion to be, that in the case made by the record the plaintiff cannot recover. We think, however, there can scarce be a doubt, that on the facts contained in it, an action could be maintained against M.r. Sanders and a recovery had against him.

Judgment affirmed.

1 st Exception. The plaintiffs offered in evidence the bill of goods sold by them to Hutchinson, on the 16th of February 1832, amounting to $1187.30, at the bottom of which was the following guaranty, signed by the defendant, Woolfolk: “ I hereby guaranty, eventually, the payment of $1187.36, amount of Mr. Hutchinson’s bill of this date.” They also offered in evidence Hutchinson’s promissory note to them for this sum, payable in six months, and then offered to prove that Woolfolk, before the goods were sold to Hutchinson, agreed to endorse Hutchinson’s note for the amount of the purchase, and that the goods were sold on this assurance; but that afterwards the plaintiffs, at Woolfolk’s request and on his assurance that he did not design thereby to change his responsibility, consented to accept the guaranty above staled, and also that Woolfolk admitted Hutchinson’s death and the insolvency of his estate. The defendant objected to this proof, on the ground that it went to set aside or materially vary the written agreement alleged to have been entered into at the time the goods were sold, but the court, (Magrüder. and Purviance, A. J.,) overruled the objection and the defendant excepted. 2nd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover: — 1st, because the promise and undertaking o-f the defendant was a promise to answer for the debt or default of another, and the agreement, or some memorandum or note thereof upon which the action is brought, is not in writing, signed by the party now sought to be charged therewith; and 2nd, because if the said promise and undertaking is in any manner or under any circumstances binding on the defendant, yet the plaintiffs are not entitled to recover unless they had used all due diligence and proper means to collect the same from Hutchinson, and there is no evidence that they did so. This prayer the court refused and the defendant excepted. 3rd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover in this action upon the evidence under either count, which instruction the court gave as to all the counts except the fourth, as to which they overruled the objection of the defendant and decided that there was evidence to go to the jury upon this count. To this ruling the defendant excepted. The verdict and judgment were in favor of the plaintiffs and the defendant appealed. The judgment was affirmed by the Court of Appeals at its June term 1839.