Hamburger v. Paul ( 1879 )

Brent, J.

delivered the opinion of the Court.

The defence set up, by the appellant to this action, is a compromise made between the parties during its pendency. The cause of action is a note of the Merrimac Perpetual Building Association, endorsed by the appellant for value to the appellee prior to its maturity. The note is for $1000, and the alleged compromise was a note of the appellant for $250 which it is claimed was taken in full satisfaction of the debt. This note was paid at maturity, but no entry of satisfaction was made in the suit then pending for the note of $1000, nor is there any entry in regard to the alleged compromise.

The note sued upon was brought to an attorney by Mr. Negengard, who is since dead, with instructions from the appellee to bring suit upon it. Suit was accordingly instituted against the appellant, but some doubt existing before the decision of the Court of Appeals, of Jackson vs. Myers, 43 Md., 452, as to the liability of an endorser upon a note of this description, the attorney, who brought the suit, afterward saw Mr. Negengard, and advised a compromise. Through him and with the assent of the attorney, it is alleged, that an arrangement was made with the appellant to take his note at a short date for $250, and that this when paid should be in full of the appellee's claim against him.

There is no pretence that any special authority was given to the attorney to make any such arrangement. The case of Maddux vs. Bevan and others, 39 Md., 485, conclusively establishes that an attorney, without express authority to do so, has no power to compromise claims of his client by taking a bond or any thing except money in satisfaction of them, or by receiving a less sum- or any security for a less sum than is due on them.

If therefore there is any effective compromise binding upon the appellee, it must be worked out through the agency of Negengard.

The uncontradicted proof in the case is, that the appellee knew nothing of any compromise until she was informed of it by her counsel, which was some time after the death of Negengard. Not receiving as large a dividend as she expected, from the effects of the Building Association which was insolvent, she requested her attorney to press her case against the appellant to final judgment. He then informed her of the alleged compromise, and refused to do so. She expressed her surprise and ignorance of any such arrangement and employed without delay other counsel to proceed with the case.

The authority of Negengard, to make the compromise, must depend upon the extent of the control conferred upon him as agent, over the note.

Upon this point the evidence is also uncontradicted. The note was placed in his hands solely for the purpose of carrying it to an attorney to have suit brought upon it. He was not and never acted as the general agent of the appellee. So soon, therefore, as the note was placed in the hands of an attorney for suit his power as agent in the transaction finally ceased. In this respect the case differs from that, cited by the appellant’s counsel, of Barclay vs. Hopkins, decided by the Supreme Court of Georgia, and found reported in the Law Reporter of June 5th, 1878. There the note was placed in the hands of the agent for collection; while in this case it was given to Negengard for the purpose alone of handing it to an attorney to bring suit, and of course to prosecute it to final judgment. So that even if we felt justified in adopting the doctrine announced in Barclay vs. Hopkins, it is inapplicable to the present case.

The proof showing an entire absence of any authority from the appellee to either her attorney or Negengard to make the alleged settlement with the appellant, it is •clearly not binding upon her.

But it is argued, that the appellee by receiving and retaining the $250, has ratified and confirmed the settlement made by these parties. The confirmation of the acts of another, if established by the proof in the case, will no doubt render them quite as binding as if they had been done in the exercise of a specially delegated authority. But here the receipt of the $250 cannot - he construed as a confirmatory act. The appellee proves that she was utterly ignorant of the settlement now attempted to be set up, and that she never would have assented to it; that this money was represented to her as being the supposed difference merely between the dividend which the building association, then in the hands of receivers would pay, and the amount of her claim sued upon, and that if the dividend turned out to be less than the difference, the appellant was to make it up, or if it was more, he was to have the over-plus returned.

The receipt of the money with this understanding on the part of the appellee, cannot certainly be construed into an assent on her part, that it was received in full payment of her claim.

Her subsequent conduct corroborates this part of her testimony. She delayed until the dividends of the building association were paid, and finding them far short of covering the balance of her claim, she demanded that her suit against the appellant should be proceeded with for the recovery of the sum still remaining due.

A number of cases are cited by the appellant’s counsel to sustain the doctrine, that a party cannot repudiate a settlement or compromise, and at the same time retain the benefits or securities derived from it. They are all cases in which some additional security had been received, and are therefore inapplicable to a case like the one now under consideration. Here no additional security was given or received. It was but'the payment of a part of the money actually due by the appellant to the appellee. To require the appellee to return it, when she had the undoubted right to recover it in her present suit which was then pending, or. take the alternative of affirming a compromise which she never authorized, cannot have the sanction of law. No authority has been cited announcing such a rule, and we are satisfied none such can be found.

(Decided 26th March, 1879.)

These views are applicable to the several prayers of the plaintiff and the defendant; with the exception of the third prayer of the defendant, and we think the action of the Circuit Court upon them is without error.

The third prayer of the defendant is in regard to the plea of limitations. The exception to the rejection of this prayer was not argued by the appellant’s counsel, and we may infer it was abandoned. It’s refusal by the Court was undoubtedly right, as the Statute was clearly no bar to the suit.

As we have found no error in the instructions of the Court, the judgment will be affirmed.

Judgment affirmed.