High v. Emerson , 23 Wash. 103 ( 1900 )

The opinion of the court was delivered by

Reavis, J.

Action to set aside and vacate the satisfaction of a judgment.

In May, 1897, upon a general and special verdict of a jury, a judgment was entered in favor of the respondent and against appellant in an action in replevin for the return to respondent of certain personal property, or its value, in the sum of $500, together with damages in the sum of $150. On the 13th of September, 1897, there was entered on the execution docket upon the record of the judgment the following entry:

“Full payment and satisfaction of the within judgment by delivery of the articles described in the judgment herein, and payment of the damages and. costs, is hereby received and acknowledged this 15th day of September, A. D. 1897. Ellen High, plaintiff. By H. Julius Miller, her attorney.”

The suit here is to set aside the satisfaction.

The complaint alleges, in substance, that the attorney had no authority, except the general authority of an attorney, to collect the judgment or receive satisfaction thereof; that the satisfaction was executed, without the knowledge or consent of the respondent; that neither the whole nor any part of the personal property involved in the replevin suit was delivered to the respondent; and that no part of the damages, except $85, was paid. It is also alleged that the satisfaction so entered of record was collusive, and that the appellant and the attorney of respondent, for the purpose of defrauding respondent, made the satisfaction. Appellant answered, denying collusion and fraud, and alleging the satisfaction of the judgment in fact and the authority of the attorney to enter such satisfaction.' Trial was had and findings of fact made by the superior court. Ho exceptions to the findings of fact were taken by either side. The material facts found are substantially as follows: That Miller, who signed the satisfaction, is the attorney who prosecuted the replevin suit to judgment on behalf of the plaintiff; that, after the rendition of said judgment, the plaintiff authorized Miller, her attorney, to compromise and settle said action; that Miller, acting for the plaintiff, made an agreement to settle the judgment, in which the defendant was to pay $85 in cash, cancel the claim of said defendant against Miller personally in the sum of $55, and surrender possession of all of the personal property, except a refrigerator and carpet, of no greater value than $25; that, at the time of the agreement, the personal property, consisting of household goods, was at the house of one Dickey, who was renting the same from the defendant; that, in pursuance of the agreement, defendant paid the sum of $85 in cash to plaintiff’s attorney, acting for plaintiff, and canceled the claim against said attorney personally in the sum of $55, and defendant then informed Dickey that he had.settled the judgment and had nothing more ,to do with the goods, ' and had turned the same over to Miller, attorney for plaintiff. At the time of the agreement, and settlement pursuant thereto, plaintiff was a resident of Vancouver, British Columbia, and had directed Miller, as her attorney and agent, to forward the goods, in case of settlement, to that place; that plaintiff left no money and provided no means for boxing or shipping the goods, and left no other instructions to her attorney in regard thereto; that thereupon the attorney Miller entered into a written memorandum with Dickey whereby plaintiff leased to Dickey from the 13th of September to the 15th of October, 1897, the personal property involved in the replevin suit, except the carpet and refrigerator, of the value of about $25, in consideration that Dickey should, about the 15th of October, box"the property and deliver the same free on board cars, addressed to the plaintiff at Vancouver, B. C.; that the agreement of settlement between defendant and plaintiff’s attorney Miller was made in the office of defendant and in the presence of Dickey; that the attorney Miller at no time had the manual or actual possession of the goods, other than as mentioned in the settlement and the subsequent agreement between the attorney and Dickey; that Dickey, in pursuance of his agreement, boxed and marked the' goods with plaintiff’s address at Vancouver, B. C., and was transporting part to the railway station when all the goods were attached at the suit of the Emerson -Investment Company against plaintiff; that the goods were thereafter sold to satisfy the judgment obtained by the company against plaintiff, and that the defendant Emerson was the manager of the Emerson Investment Company; that plaintiff agreed to pay her attorney Miller for his services in the replevin suit, $100, and one-half of all damages recovered, and prior to the said settlement and entry of satisfaction she paid no part of the fee. The superior court, upon the above facts, determined that the cancellation and satisfaction of the judgment should be vacated, in so far as it attempts to satisfy the judgment adjudging to tie plaintiff a return of tie specified items of property in tie replevin suit, or for tie sum of $500, their value.

It will ie observed tiat tie cause must be beard here upon tie facts as stated by tie superior court. No finding of collusion or fraud between Miller, tie attorney of tie respondent, and tie appellant is made. No specific finding of failure of delivery of tie property involved in tie replevin suit is made. There is an inferential statement tiat Miller, respondent’s attorney, at no time iad tie manual or actual possession of tie property, but this is qualified by tie words, “other than as above set out.” Tie attorney waá authorized to compromise and settle tie replevin suit. Thus tie contention of counsel tiat tie general autiority of an attorney did not authorize Miller to settle tie suit becomes immaterial. Tie finding is tiat special autiority existed. In tie settlement tie attorney Miller seems to-have made small concessions to defendant; tiat is, $10 on tie amount of damages was remitted, and articles of tie personal property of tie value of $25 were not returned, making a diminution of $35 in tie value of tie whole judgment. Tie agreement between respondent and ier counsel Miller upon tie attorney fee was $100 and half tie damages recovered, which entitled ier attorney, upon tie full settlement of tie judgment, to $175. It is apparent tiat, iad ie collected tie entire judgment in money ie could iave retained iis fee, and iis client should iave rightfully received tie remainder. Tie cancellation of tie personal claim of $55 due from tie attorney to tie defendant may be, then, regarded as tie payment of tie $55 to tie attorney. We think a fair construction of tie autiority found, of tie attorney to compromise and settle tie action, sustains tie agreement of settlement made between tie attorney and the appellant.

The remaining question is, was tie agreement executed, and did tie defendant deliver tie personal property to tie attorney for plaintiff? Under tie agreement, tie appellant stated to tleir custodian tlat le lad settled tie judgment and lad turned over tie property to Miller, attorney for plaintiff, and tlereupon tie agreement in writing was made between Miller, tie attorney, and Dickey, wlo lad possession of tie property. We tlink tie property was delivered to tie attorney of plaintiff and tierefore to plaintiff. It seems to be recognized tlat delivery of personal property may be made by an arrangement that some third person in possession of tie goods may Told them as bailee for the purchaser or owner. Barney v. Brown, 2 Vt. 374 (19 Am. Dec. 720); Carpenter v. Graham, 42 Mich. 191 (3 N. W. 974); Benjamin, Sales (Bennett’s ed.), 154.

If tie personal property, tie subject matter of tie judgment in replevin, was delivered to tie attorney for tie respondent under tie terms of tie compromise and settlement, tlen tie judgment was in .fact satisfied and tie entry of sucl satisfaction was authorized. Tie subsequent failure of respondent to receive tie property, or tie seizure by legal process and sale of sucl property in an action against ler, would not alter' tie effect of tie satisfaction. Tie .argument of counsel for tie respondent, founded upon tie fraudulent collusion of tie attorney for respondent and tie appellant, las not been unobserved; but, as las been mentioned, tie findings of fact, wlicl alone can be considered lere, are silent upon tlose allegations of tie complaint, and, from tie facts found, we cannot sustain tie conclusions of law of tie superior court.

Tie judgment must be reversed and judgment given in ■favor of appellant.

Dunbar, C. J., and Anders and Fullerton, J.J., concur.