Housenick v. Miller

Mr. Justice Gordon

delivered the opinion of the court, March 22d 1880.

The learned judge of the court below erred; in several particulars, when he said to the jury: “ No matter, though this business had been conducted for one year, or five years, if the testimony of Jerome Miller, and that of Mr. Miller, the plaintiff, is to be believed, it never could become a fraud in law, so far as Mrs. Houseniek is concerned, because it was the work of her counsel. The agency of counsel is about as high an agency as we know of. The counsel of Mrs. Houseniek was present when the paper was drawn up — at least executed. The son, if he is to be believed, was present when the understanding was had.”

This assumes, 1. That Jerome Miller, as counsel for Mrs. House-nick, assented to the contract of the 14th December, between Gr. M. Miller, the plaintiff below, and W. C. Yost, whereas Mr. Miller says: “ I was opposed to this compromise, aud had a plan of my own to protect Mrs. Houseniek’s rights, as I thought.” 2. It assumes an authority in Jerome Miller, by virtue of his position as defendant’s attorney, to enter into a compromise by which not only her execution should be stayed, but her judgment postponed in the interest of other creditors of Yost. In Stokely v. Robinson, 10 Casey 315, it was held, that an attorney, by virtue of his professional relation, has no power to compromise his client’s case, without the client’s authority or sanction; and this doctrine is supported by the cases of Houston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O’Hara’s Ex’rs., 2 Harris 88. In the latter case it was said, per Coulter, J.: “ An attorney-at-law in Pennsylvania has very extensive power in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment and giving a receipt for it.” 3. An apparent force is given to the fact that the son of Mrs. Ilousenick was present at the execution of the paper in question, and yet there is no evidence that he either assented thereto, or had power so to do; on the other hand his testimony is to the contrary. In fact, it nowhere appears that Mrs. Ilousenick knew anything about the arrangement by which she was to be postponed to the creditors of Yost and Borden, whilst Yost’s goods went to Miller as collateral security for his endorsements. It is said, indeed, that this arrangement was communicated to her by her counsel, and that she assented to it. She, however, denies this, and were there nothing else in this part of the case, yet this denial was sufficient to have required the submission of this question to the jury. Substantially, however, there was no conflict in this testimony. Mr. Miller says, “ We talked the matter over, how it had been arranged; told her I was afraid, maybe Mr. Yost could not make it go; she said she hoped he could, and if he could it would be the best thing that could have been done; that everybody would be fixed then.” Again, when asked to say whether ho did communicate to his client the circumstances attending the sale to Gr. M. Miller, he says, he don’t know that they went into it fully, but that it was spoken of ás a compromise made, and that Yost was going to try to pay off his creditors. What kind of an assent was this to a contract about the making of which she had never been consulted, and to which neither she nor her counsel had ever assented ? And who interested in this contract had ever asked her assent thereto ? And how could this talk between herself and her counsel, and which was riot even communicated to Miller, bind her to a contract she had never even seen ? This evidence proved nothing for the plaintiff, or against the defendant; it was simply of no consequence in one way or the other; and yet, upon it the case is made to turn against the defendant. Hot only so, but from this and other testimony of a like character, the case seemed so plain and obvious to the learned judge who tried it, that he informed the jury, that it passed his comprehension how any counsel, conversant with the transaction, as detailed by the witnesses, could have issued the second execution, and raised the claim set up for the defendant.

We ¿an only say to this, as to most of the balance of the charge, that there was a total misconception of the case, and a consequent mis-trial thereof.

Judgment reversed, and a new venire ordered.