Glenn v. Davis

The opinion of the court was delivered March 4, 1859, by

Thompson, J.

— Davis, the defendant in error, was employed in September, 1849, by Baker, to take the charge and care of the steamboat, out of which this controversy arose, for the stipulated sum of one dollar per day. He accordingly took and kept the charge and care of it, for something over a year. His care and custody being ended by an order from Baker, without payment, he issued a foreign attachment, and seized it to satisfy his claim. The writ was issued against Baker, as defendant, and the boat was attached in plaintiff’s own hands. It was shortly thereafter sold by order of the court, and Davis became the purchaser, for $83. Judgment was recovered by plaintiff, in the attachment suit, for $500.

After this, Glenn, the plaintiff in error, brought suit against Davis, in trover, for the boat, claiming it as the property of Mrs. Ellicott, his cestui que trust, and recovered $250, the value of it.

Davis then brought this suit, by a writ of attachment, against Glenn, trustee, for the recovery of his claim for services, under the employment of Baker, and attached the judgment in his own hands, recovered by Glenn. The latter appeared to the action; and on trial, the plaintiff recovered for the services, $371.75.

It appeared in evidence, that after the purchase of the boat by Davis, he broke it up, and sold it in parcels, realizing, in fact, only some $50 or $60 for it.

On the trial of this issue, the defendant below, and plaintiff in error, gave in evidence the proceedings in attachment by Davis v. Baker, and requested the court to charge, “ that if Davis became informed of the fact of the agency of Jacob Baker, — that John Glenn was the principal, before bringing the attachment to No. 28 of February Term, 1851, — that the bringing of said attachment, and prosecuting it to judgment, and sale of the property, is such an election as will prevent him from after-wards following the principal.” The learned judge answered this point in the negative; and the answer constitutes the first assignment of error.

To succeed against the plaintiff below, in the action of trover, the defendant in this suit was obliged to set up the agency of Baker, in regard to the boat; and on this ground, and want of title to the boat, in Baker, as whose property it was seized and sold, he recovered its value against Davis. Thus was the latter defeated, in his attempted recovery for his services, and he brings this suit to enforce the contract of the agent against the acknowledged principal. From this perilous position, the principal seeks to escape, on the ground, that as the plaintiff below had proceeded by attachment against Baker, to recover his claim for services, it was an election to look to the agent for compensation for the services, and was a release of the principal. Was this seizure of the property, on the attachment per se, an election to look to the agent, and a release of the principal ? This was just the point submitted, and answered in the negative, in the court below.

It will be recollected, that the attachment was simply a proceeding in rem. If it had been in personam, as was the case in Jones v. The Ætna Ins. Co., 14 Conn. Rep. 502, with a full knowledge of the principal, it might have had the effect contended for; for it cannot be denied, that an agent may lay himself liable, not only by the manner of his contracting, but by the concealment of his principal at the time of contracting. But the judgment in an attachment, had no other effect than to authorize the sale of the attached property. It did not bind Baker further than this. No execution could issue on it, after the attached property was sold. It was fully and completely a proceeding looking to the property, as satisfaction, and not to Baker. As Baker never appeared to the suit, it could have no other operation. This being so, it seems to me, that ex propria vigore, the .act of issuing the attachment was not an election to hold the agent, and release the principal, and that the court could answer in no other way than they did.

The plaintiff in error standing, then, as the acknowledged principal, and, in fact, estopped from denying it, after setting it up in the action of trover; and as the plaintiff has neither in fact nor in law, been compensated, or satisfied, or the defendant released, the liability of the latter remains, of course. As principal, he had received the services for which suit was brought through the contract of his agent, and is bound to pay for them. So far, there is no error in the record.

2. The answer of the court, complained of in the second assignment of error, was unexceptionable. .

3. The third assignment of error, is to the refusal of the court to instruct the jury as requested, that the sum of $83, made on the plaintiff’s attachment, was an extinguishment, or satisfaction of his claim, pro tanto. This sum having been returned as the amount made on the order of sale, must be treated as would- a sale and return on an execution.. In judicial sales, there is no warrant of title, and hence, it has been held, that the existence of the return of money made, is a satisfaction of the writ and judgment. This case is not distinguishable from, or exceptional to the principle stated. The cause of action is the same in this suit, as it was in the attachment. This the plaintiff does not, and could not deny. If, then, it was partly extinguished, under the process in the attachment, why shall not the extinguishment operate in this' action ? In fact, the proof shows, that the plaintiff actually received nearly the amount of his bid from the property. To permit him to recover in full for his services now, as the jerdict must be taken to be, would be to allow him the $83 more than they were worth, as ascertained by the" verdict. By applying the doctrine of extinguishment, this result will be corrected, and justice done between the parties. We think the court erred in not charging as requested on this point; but as the sum claimed to be in excess, is specific, it may be remitted, and as the defendant has expressed a willingness that this maybe done, in case we should think it ought to be done, we will correct the judgment, by deducting it, and affirm the judgment less that amount.

The judgment of the Court of Common Pleas of Greene county is affirmed for $283.75, after deducting the sum of $83, as of the entry of the same, and as to the residue, the judgment is reversed.