Brent v. Davis

9 Md. 217 | Md. | 1856

Le Grand, C. J.,

delivered the opinion of this court.

This action was brought to recover the amount of a judgment obtained on a promissory note, payable to the appellees by a certain Thomas G. Kelly, of Carroll county. The facts of the case, as shown at the trial'below, may be thus stated:— The appellants were associated in copartnership, (as was proven by an advertisement to that effect in one of the newspapers published in the city of Baltimore,) for the conducting of their business in the city of Baltimore as lawyers; that the appellee, Ferry, placed in the hands of the appellant, Horsey, the promissory note of Kelly, and the said Horsey gave him therefor the following receipt:

“ March 27th, 1845.

Received of John Ferry, Esq., a note of Thomas G. Kelly, of Carroll county, dated 31st December 1842, for $>350, one day after date — to be collected. Brent & Horsey.”

On the note so handed to Mr. Horsey suit was brought against the maker, and judgment obtained on the same in Carroll county court. The suit was brought by T. Parkin Scott, Esq., as the attorney of the pa3rees. Subsequently, Abner Neale, Esq., appeared as their counsel. The money was obtained on the judgment,'but never paid over to either the appellants or appellees in this case. This suit is brought on the theory, that the appellants having received the note for collection, are bound, in law, for the amount received by Neale. This is denied on various grounds: — First, that Horsey had no power to bind his partner to do any professional business beyond the limits of the city of Baltimore. Second, that inasmuch as neither of the appellants practiced their profession in Carroll county, the reception of the note for collection only implied, on their part, an obligation to exercise due diligence in the selection of some attorney of that county who was generally esteemed and regarded as trustworthy and competent; and Thirdly, that it is the custom among the members of the profession in the city of Baltimore, when they do not practice in a particular county, or court, to transmit to an attorney who does so, any paper given to them for collection, and that such reception and transmission is not understood as subjecting them to any liability for the conduct of the person selected to prosecute the claim.

The appellants never received any fee or commission for their agency in the transaction. It was also proven that the appellee Ferry was a subscriber to and daily received the newspaper, the “Baltimore American,” at the time the notice of the co-partnership between the appellants appeared in it as an advertisement.

On this state of facts the appellees submitted- to the court below one prayer, which was granted; and the appellants six, which were all rejected. From this decision this appeal is taken.

We think the court erred in granting the prayer of the plaintiff, and in rejecting the first, second and sixth prayers of the defendants.

This is not an action for negligence, but for money had and received, and there can be no recovery, unless it be shown that the defendants actually received it themselves, or that their agent did so. The prayer of the plaintiff concedes this by requiring the jury to find that Abner Neale was the agent of the defendants. The defect in the prayer is, that there is no evidence from which the juiy could find such agency. There is not the slightest evidence in the record to show how, or by what authority he became associated with the case in. Carroll county court. The suit was brought by T. Parkin Scott, Esq., and if any inference is to be drawn of the creation of an agency by the defendants, from the fact that the note was handed to one of them, and therefore to be accounted for, it would be that Mr. Scott, and not Mr. Neale, was the agent selected.

The first and sixth prayers of the defendants are but the converse of the proposition contained in the plaintiffs’, and ought to have been granted.

The second prayer of the defendants ought also to have been granted. It merely asserts, that if the partnership of the defendants was limited to the transaction of professional business within the limits of the city of Baltimore, and that the plaintiffs “ were apprised of this fact,” then there is no joint responsibility, unless the defendant Brent assented or was privy to the transaction. Had this prayer been granted, the jury might have found all the facts therein required to be found by the jury. The fifth prayer of the defendants was properly rejected. The evidence relied upon to sustain the usage we regard as insufficient. For the views of this court on the subject of usage, see Foley & Woodside, vs. Mason & Son, 6 Md. Rep., 49, 50. We abstain from an expression of opinion in regard to the other propositions, inasmuch as we regard them as mere abstractions in this case. The question here is, not whether Mr. Scott or Mr. Neale be responsible to the plaintiffs? but, whether the defendants are ? It would be improper to decide on the responsibility of persons who are not parties before us.

Whilst we hold, that if the partnership was limited to the city of Baltimore, one partner had no right to bind his co-partner, without his consent, for matters not covered by the terms of their agreement, nevertheless, we hold it clear, that if there was privity or assent to a contract to do that not covered by the co-partnership, it binds all. If the jury should believe from the evidence that Mr. Horsey signed the receipt given in evidence, and that Mr. Brent ratified the act, and that Mr. Neale was their agent, and received the money and failed to account for it, then the defendants are responsible. That the plaintiffs may have an opportunity to supply the proof of the agency of Mr. Neale, if they can do so, we send the case back.

Judgment reversed and procedendo awarded.