Fogg v. Sanborn , 48 Me. 432 ( 1860 )

The opinion of the Court was drawn up by

Cutting, J.

This is an action of debt, upon a note*signed by the defendants, payable to the order of Eogg & Burbank, in six months from June 3d, 1,852, for the sum of $314,62. And, also, upon a judgment recovered by Eogg & Burbank against the defendants, for $368,10, debt, and $34,65, costs, at the October term, 1855, of the Supreme Judicial Court for the county of Waldo.

' In defence it appeared, that the original account, for which the note was given, was enclosed in a letter to an attorney residing in Waldo county, for collection. The letter was introduced and reads thus:—

“Boston, 13th Nov., 1852. — E. S. Nickerson, Esq. — Dear Sir, — Enclosed we hand you the amount of our demand against Messrs. Sanborn & Moody, which was made into a note June 3d, six months, for three hundred fourteen dollars and sixty-two cents, and is now in one of the banks in this city. If necessary, we will get the note and forward to you. Should you see a probability of obtaining something on the claim, we would like to have the effort made; but, if otherwise, should say — jet there be as little expense as possible.

“Eogg & Burbank by C. Ward.”

It further appeared, that Nickerson brought the suit on the account and recovered the judgment now set forth in the plaintiff’s writ. That subsequently, on March 31, 1855, he, as the attorney of record, upon the payment of twenty per cent., discharged Sanborn, and, on December 10th, of the same year, on payment of ten per cent., discharged Moody from all claim by virtue of the judgment and executions issued thereon. This the attorney was authorized to do by virtue of the statute of 1851, c. 213, § 1, then in force, and since continued in the revision of 1857, c. 82, § 44, which provides that— “No action shall be maintained on a demand settled by a creditor, or his attorney entrusted to collect it, in full discharge of it, by the receipt of money or other valuable consideration, however small.”

But, it is contended by the plaintiff’s counsel that the judgment was not founded upon the note, but upon the account, which was discharged by the note. It appearing that the note was negotiable, the defendants in the former suit might have availed themselves of such fact in defence to that suit on the original account, subject, however, to an amendment in the discretion of the Court, by adding the money counts, under which themote would have been admissible as evidence. However that may have been, it is neither legal nor equitable for the present plaintiff of record, who ordered the process and recovered the judgment, now to invoke such a technicality, and at the same time rely upon his judgment, when, in fact, the note and account were both entrusted to the attorney’s care, or, at least, subject to his control; for, as stated in the letter, “ if necessary, we will get the note and forward to you."

It is again urged, by the plaintiff’s counsel, that Burbank died in June, 1852, and, on Feb. 22d, 1854, Fogg, as surviving partner, transferred his interest in the note to the widow of his deceased partner, and that William Manning, as her agent, had certain correspondence with the attorney in relation to the demand, and, it is contended, from the evidence thus introduced, that the attorney’s authority was terminated or exceeded. But, upon an examination of the testimony touching this point, which is to be found in the depositions of Nickerson and Manning, and letters and documents annexed, we find the proposition not to be sustained. Manning never countermanded any authority previously conferred on the attorney by the letter enclosing the original demand, or wrote him upon the subject, until Nov. 13, 1856, which was long after the payment and discharge of the judgment, and excuses himself for such neglect by stating that he thought it unnecessary, so long as he held the note in his own hands.

Had the note been negotiated to a bona fide holder, for a valuable consideration, before its maturity, such an excuse might have been entertained. But the facts were far otherwise, and the present plaintiff in interest must share the same fate as the plaintiff of record, which is—

Plaintiff nonsuit.

Rice, Appleton, Davis and Kent, JJ., concurred.