81 Tenn. 114 | Tenn. | 1884
delivered the opinion of the court.
Thomas & Collier, a firm composed of John Thomas and D. W. Collier, were the successors of two other successive firms of which Thomas was a member. The last firm purchased the assets of its predecessors, including the book accounts. In 1870, Thomas died, and J. L. Pulliam, the testator of the defendants, became administrator of his estate. Pulliam was a lawyer, and, under the direction of Collier as the surviving partner of Thomas & Collier, the accounts were drawn off from the books of the firms to the amount of $21,000, and placed in Pulliam’s hands for collection. Pulliam made large collections, all of which, have been accounted for with the surviving partner, Collier. About the first of January, 1878, Pulliam
The error principally relied on is alleged to be im the following charge of the judge to the jury: “ I also charge you that it is the duty of the plaintiff'' to prove that the accounts herein sued for Avere valid accounts, due and owing from the parties respectively against whom they ran, to your satisfaction, and if" he fails to do so as to any of them he cannot recover thereon.” The plaintiff requested the court to give to the jury the following instruction: “That iff they found from the proof that the books and accounts were placed in the hands of Joel L. Pulliam as attorney for collection, then the burden of proof.
The plaintiff could only prove that the accounts .sued for appeared upon the books of the firm, and •offered no other proof to show that the accounts were valid, and due and owing by the apparent debtors. There was evidence tending to prove that some of the claims now in controversy, if valid, might have been collected from the' supposed debtors for several years after they were placed in Pulliam’s hands, and were now barred by the statute of limitations, or ren■dered worthless by the subsequent insolvency of the parties.
The substance of his Honor’s charge is that the plaintiff" could not recover without first showing that the accounts, for the failure to collect which the testator’s estate was sued, were, when placed in the testator’s hands, valid, subsisting debts of the persons .against whom they were made out. And that after .the plaintiff has made out a prima fade case of neg
If a claim or demand on a third party be received for collection by an attorney, it would be his-duty, if not otherwise collected, to sue upon it in a reasonable time, or to notify his client of his reason for failing to do so. His failure to act would be a negligent breach of contract, for which he would be-liable to nominal damages at least at the suit of his¡ client. To recover actual’ damages, the burden would,, upon general principles, be upon the plaintiff, and the-quantum of damages would necessarily be regulated by the value of the claim lost by the failure to sue. It is, in fact, not easy to see how there can be other than nominal damages unless the plaintiff makes such proof. Some of the text books, accordingly, so state-the law. Mr. Green leaf says: “Where the remedy against an attorney is pursued by action at law, and the misconduct has occasioned the loss of a debt, the existence of the debt is a material fact to be shown by the. plaintiff. If it were a judgment, this is proved by a copy of the record duly authenticated: Russell v. Palmer, 2 Wils., 325, 328. The fact of indebtment to the plaintiff by the debtor must also be proved by competent evidence, where it has not yet passed into judgment. In short, the plaintiff has to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the defendant”: 2 Gr. Ev., sec. 148. Mr. Greenleaf cites
The learned counsel of the plaintiff has cited several text writers who seem to Jay down the general proposition, that when negligence is proved, it is for the attorney to defend himself by showing that the client has not been hurt by his negligence: Wood’s Mayne on Dam., sec., 648; Whart. on Neg., sec. 752; Sherm. & Red. on Neg., sec. 220. The context shows that these writers have in their view the case where a judgment has gone against the client by the negligence of .the attorney, and they all cite the same authority, namely, Godefroy v. Jay, 7 Bingh., 415. In that case the attorney was retained to defend an action of tort, and allowed judgment to go by default. The client was permitted to obtain a recovery against the
The exceptions to the report of the Referees will be disallowed, and the judgment below affirmed. But the appellant will pay the costs of this court.