Barr v. Rader

49 P. 962 | Or. | 1897

Mr. Ohiee Justice Moore,

after stating the facts, delivered the opinion of the court.

The right of the plaintiff to maintain this action depends upon the authority of the sheriff to accept as payment pro tanto upon the judgment in the original action the certificate of Harrer Brothers to a notice of garnishment, acknowledging their indebtedness to Barr. The plaintiff contends that the sheriff, on his behalf, entered into a contract with Bader by which it was agreed that the amount so admitted to be due from Harrer Brothers to Barr should be indorsed as a payment on the writ, while the defendant insists that no such agreement was consummated, and that, the amount so admitted to be due from Harrer Brothers to Barr not having been paid, he had the right to issue the alias writ under which the levy, detention, and sale complained of were made. The evidence tends to show that Harrer Brothers had been negotiating with Barr to lease from him a pasture, but, before any agreement to that effect had beén entered into, the sheriff, with the execution in his posséssion, by direction of Bader’s attorney applied to them for a statement of the transaction, and, being informed that no agreement had been made, the notice of garnishment was not served. Harrer Brothers, however, had another conference with Barr, who agreed to lease the pasture to them in consideration of their agreement to pay $75 on the judgment rendered against him. This agreement having been consummated, the sheriff thereupon served the notice of garnishment, to which Grant Harrer, for the firm, furnished a certificate, to which he subscribed his name, thereby admitting the indebtedness, upon obtaining which the officer took the same to the office of Lucien Everts, Esq., attorney for Bader, where he also found the latter, in whose presence it was agreed that the certificate should be signed by the firm name, whereupon the sheriff obtained the signature of Harrer Brothers and returned the same to Everts. It also appears that Barr and Harrer Brothers had not agreed upon the time when the rent of the pasture should be paid, and when the notice of garnishment was served the latter agreed with Everts that it should become due July 30, 1893. We have given a synopsis of the testimony to explain an instruction of the court as follows: “I also charge you, gentlemen of the jury, that in this case a person like Mr. Bader, who is a judgment creditor in this execution, can either act for himself or by his duly authorized agent. An agent is a person authorized by another to act for him, and, if you believe from the evidence in this case that Mr. Everts was the regularly employed and acting attorney for Mr. Bader in this transaction, any agreement or any contracts made between these parties, Mr. Barr and Mr. Everts, m that capacity, would be the act of Mr. Bader, and he would be responsible for them, and would be bound by the acts of his agent.”

An exception to this instruction having been taken, it is contended by counsel for the defendant that an attorney has, by virtue of his general retainer, no authority to satisfy a judgment without payment thereof in money; that while Bader might have accepted Harrer Brothers’ certificate to the notice of garnishment as part payment of the judgment, Everts, as his attorney, had no power to do so without special authority from his client to that effect; and that, if plaintiff would rely upon Everts’ right to bind his •principal, the burden was upon him to show that the authority existed. “The plaintiff’s attorney,” says Mr. Freeman in his work on Executions (2d ed.), § 108, “ has, by virtue of his general employment in the case, power to direct and control the execution, though he cannot satisfy the writ except upon payment to him of the full amount thereof in money, urn 1-ess the plaintiff has given him special authority to compromise the debt or accept satisfaction in something not a legal tender. The burden of proving such special authority is upon the party claiming under it, for it will never be presumed.” In Smock v. Dade, 5 Rand. (Va.) 639 (16 Am. Dec. 780), an execution was returned indorsed, “Not executed, by order of plaintiff’s attorney.” An alias writ having been issued, the defendant moved to quash the same, contending that the amount' for which the judgment was given had been paid to plaintiff’s attorney, and in support of the motion gave in evidence a memorandum signed by the latter as follows: “Received 25th November, 1822, from Ool. Laurence T. Dade, one hundred and fifty-four dollars and seventy cents, in money; also, the bond of William Quarles for one hundred and seventy dollars and thirty-nine cents, payable in four months, and a draft on Anthony Buck for three hundred dollars, after ten days’ sight, which, when paid, will be in full of the execution of James Smock and Peter Smock against him in Orange County Court. Edmond Banks, Attorney.” The trial court, on this evidence, having quashed the writ, an appeal was taken; and Summers, J., in reversing the judgment, says: “ The authority of the attorney to receive payment of the debt which he is employed to recover we think well settled; but that authority, in our opinion, does not extend to its commutation without the assent of the client. In relation to Quarles’ bond, we regard Banks as the attorney of Dade, not of Smock. On giving an acquittance or receipt for the money, he must have represented the former, not the latter. It was a new engagement, in which all his authority was derived from Dade. To him he must have looked for compensation, and to him he was accountable. To extend the authority of the attorney beyond this limit, without a general discretionary power from the party employing him, would carry the responsibility of the first client into transactions far beyond the first engagement, and which might be induced solely with a view to the profit of the attorney or the aecommoda-' tion of the debtor.”

In Herriman v. Shomon, 36 Am. Rep. 261, Messrs. Schulenberg and Company recovered judgment against the defendant, and thereupon assigned the same to plaintiff, who caused an execution to be issued thereon, in pursuance of which a levy was made upon the defendant’s stock of goods. Shornon therteupon commenced this suit to restrain proceedings under the writ, claiming that he had delivered to the attorney of Schulenberg and Company a county warrant, which was received’ as payment pro tanto on the judgment. A trial was had, and the court, having found that the judgment had been paid before the issue of the execution, gave a judgment as prayed for, in reversing which Brewer, J., says: “There is no pretense that the plaintiffs in the judgment knew of the action of their attorney, authorized or ratified it, or that he had any special directions or authority in the matter. He had simply the general authority of an attorney in the collection of a judgment. But this general authority is to receive money only in payment. He can neither sell, assign, nor compromise a judgment, nor receive notes, warrants, goods, chattels, or land in payment. Receiving a county warrant is simply exchanging a judgment claim against a debtor for a claim against a county. It matters not that the debtor is insolvent, and the warrant valid and valuable. The attorney is employed to collect; that is, receive the money due on the judgment, and not to trade the claim for anything apparently or in fact more valuable. The authorities in this direction are clear and abundant.” To the same effect, see, also, Freeman on Executions (2d ed.), § 108; Weeks on Attorneys at Law, §§ 240, 242; 3 Am. & Eng. Enc. Law (2d ed.), 363, and notes; Freeman on Judgments (2d ed.), § 463. The instruction complained of is, under these authorities, clearly erroneous; and, such being the case, we are compelled to reverse the judgment and order a new trial.

Reversed.