| Conn. | Sep 27, 1889
On the 27th of August, 1887, a controversy between the plaintiffs and defendant concerning the amount and validity of certain sewer assessments, was pending before a judge of the Superior Court under the statute, and on that day the parties agreed to submit the matters in controversy to arbitration. The judge before whom the matter was pending was made at first the sole arbitrator, but another judge was afterwards by agreement associated with him.
Under this submission, which was drawn up by the attorneys of the plaintiffs, and was signed by the attorneys of both parties, a hearing attended by all the parties in interest was had before the arbitrators. Some months after the hearing was finished but before the award was published, one of the attorneys employed by the plaintiffs, without the consent or knowledge of his associate, and without the authority or knowledge of the plaintiffs, but with the consent of the attorney of the defendant, so amended the written submission as to make the award final and to give the arbitrators full power to decide the matters referred to them as they should consider right and just.
Shortly after this amendment was made the arbitrators, without further hearing, and in pursuance of the powers conferred upon them by the amended, submission, published their award.
As soon as the award and amendment came to the knowledge of the plaintiffs they repudiated and disapproved of both, and of the action of their attorney in making the amendment, and brought suit to restrain the defendant from enforcing the award and to have it set aside, on the ground that the amendment materially changed the submission and had been made without their authority or knowledge. On the trial of the suit in the court below the court found that the amendment was made in good faith by the senior counsel in the case, that he believed he had full power to make it, and believed that it was for the best interests of all concerned that it should be made.
A special finding was made, and on the facts so found the plaintiffs requested the court to rule that the attorney who
On the argument the defendant contended that the amendment did not materially change the original submission and so did not affect the rights of the parties, but we are satisfied that the amendment was a material one.
The main question then is, whether the attorney upon the facts found was authorized to make the amendment to the original submission so as to bind the plaintiffs.
If he had such authority it must have been conferred upon him by the plaintiffs as a matter of fact, expressly or by implication, or he had it by virtue of his retainer and employment as an attorney in the case.
The court finds that the plaintiffs did not expressly confer such authority, but the defendant contends that the attorney had an implied authority arising out of the special circumstances of this particular case and his relations to it and to his clients. If this last claim means that the plaintiffs in fact conferred the authority by implication at least, then the court below should have so found, for this is a conclusion of fact, and not being found this court cannot draw such conclusion. Had the facts warranted such conclusion it is reasonable to suppose the court would have so found.
If, however, the claim means that the attorney had such authority by virtue of his employment in the case and'not otherwise, such claim will be considered in connection with the next question in the case, which is—did the retainer and employment of the attorney in the case confer upon him such authority?
That an attorney at law retained and employed in a cause pending in a court of common law has authority, without the consent Or knowledge of his client, to submit such cause to arbitration by rule of court or under the direction of the court, seems to be established by numerous authorities and
Let us examine the first of these positions. At the time the original submission was executed the cause was pending before a judge of the Superior Court under the statute, and when the amendment was made the matter was pending before the arbitrators, and so it seems to be claimed by the defendant that there was in either case a cause pending in court within the above rule.
Without determining whether this claim is a valid one or not, it may for the purposes of the argument be granted and still it does not help the defendant. There is no pretence that either the submission or the amendment were made under the authority or direction of the tribunal before which the matters to which the submission or the amendment relate were pending, within the spirit and intent of the rule we are considering.
The submission was made in pais; with its execution the judge had nothing whatever to do; and by its terms he had nothing further to do with the submission or the matters involved therein. This is true also of the amendment, even though made at the suggestion of the arbitrators, as the court finds. We think therefore that the case does not come within either the letter or the spirit of the rule, because, even if it be conceded that at the time the submission and amendment were made there was a cause pending in court, still both submission and amendment were made in pais and not under nor in subjection to the authority of the tribunal in
The cases establishing an attorney’s authority to submit to arbitration a pending cause under the authority and direction of the court are somewhat numerous, and as is well said in Markley v. Amos, 8 Richardson, 468, this of itself “ affords a fair inference that he cannot submit in any other way.”
We have been referred to no well considered case, nor do we know of any, which supports this claim of the defendant. On the other hand some of the authorities cited on the plaintiffs’ brief, are directly against such a position. See the cases of Jenkins v. Gillespie, 10 Smedes & Marsh., (18 Miss.,) 31; Markley v. Amos, supra; Scarborough v. Reynolds, 12 Ala., 252" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/scarborough-v-reynolds-6503404?utm_source=webapp" opinion_id="6503404">12 Ala., 252; Morse on Arb. & Awards, 16.
In addition to the cases cited there is the case of McGinnis v. Curry, 13 West Va., 29, decided in 1878, where the court holds that an attorney has no authority, before or after suit brought, to make an agreement in pais to submit his client’s cause to arbitration without special authority of his client. So far as the reasoning and conclusions of the court in that case on the point in question here are applicable to the case at bar we adopt them, and feel justified in quoting from the opinion at some length. The court says: “The authority of an attorney at common law by a consent order made in the court to submit a pending suit to arbitration, is universally admitted. And the court, in cases where such a consent order has been made at the instance of counsel, have frequently spoken of the authority of counsel to submit a controversy of his client to arbitration in general language which would be broad enough to include, not only a case of a submission of a controversy in a pending suit by an agreement of counsel in pais, but even in a controversy about which no suit was pending. But all the cases in which such loose and general language was used were eases where the authority of counsel was exercised not only in a pending suit, but by a consent order agreeing to the submission made in open court. See Wilson v. Young, 9 Penn. St., 101;
“In England, though, so far as I know, it has never been decided that an attorney had a right to submit his client’s controversy to arbitration when no suit was pending, or by an agreement in pais, and not by an order of court when a suit was pending, yet there are English cases from which it may be inferred that the courts may there consider the power of the attorney to submit his client’s cause to arbitration as general, and not confined to pending suits or to orders of reference made in courts. See Banfill v. Leigh & Jeffray, 8 T. R., 571; Jamieson v. Binns & Dean, 4 Ad. & E., 945. But in considering how much weight should be attached to these dicta of English judges, it should be remembered that an attorney in England occupies towards his client a very different relation from what he does in this country. There he is frequently the general agent of the client and transacts a great deal of his general business. But here an attorney is generally employed to attend to his client’s interest in reference to some single controversy. In Pennsylvania, too, there are decisions which might seem to imply that the power of an attorney to submit to arbitration was not confined to the making of a consent order in a pending cause to refer it to arbitration. See Bingham's Trustees v. Guthrie, 19 Penn. St., 419. But in considering what weight should be attached to the dicta of Pennsylvania judges, it should also be borne in mind that in Pennsylvania the authority of attorneys is more extensive than elsewhere. See Lynch v. The Commonwealth, 16 Serg. & R., 368; Wilson v. Young, 9 Penn. St., 101. While I have found no case deciding that an attorney has a general authority to submit his client’s controversies to arbitration, there are cases in which it has been decided that he does not possess such general authority. See Jenkins v. Gillespie, 10 Sm. & M., 31; Scarborough v. Reynolds, 12 Ala., 252. It is true that these were cases in which there was no Us pendens. But it seems to me that, as it is held that an attorney by reason of his being employed to institute a suit or defend a
“ This conclusion is not at all inconsistent with the numerous cases deciding that an attorney has authority in a pending suit by an order of court to submit the cause to arbitration. When the courts have assigned any reason for their decisions they have been based not merely, if at all, on the employment of the counsel by the client, but on the fact that he is an officer of the court acting in the presence and under the control of the court, and as such has a right to take any legal steps he may deem proper in prosecuting or defending the suit. But this reasoning has no application to any action of the attorney in pais, such as agreeing to submit the ease to arbitrators by an agreement signed by him without any special authority from his clients.”
If an attorney cannot, without special authority from his client, submit a controversy to arbitration by an act in pais, we think it follows that he cannot by any like act, without such authority, materially change a submission already made or adopted by his client. To hold otherwise would give the attorney power to do indirectly what he has no power to do directly.
The case of Jenkins v. Gillespie, supra, was a case where an attorney amended the original submission without authority from his client and the court held he was not bound by the act of the attorney. The court saj^s: “ But admitting that an attorney has in general power to submit, has he power to change the terms of the submission made by the parties ? That would be to change their contract. * * * We think it would be going too far to say his assent to the change should bind his client.”
In the case at bar, although the court finds that the submission was drawn and signed by counsel who believed aud
Inasmuch therefore as the court below failed to find that the attorney had any authority from the plaintiffs to make the amendment, and we are of opinion that the law gave him none, we are constrained to hold that he had no authority to make the amendment so as to bind the plaintiffs.
We regret that the facts and the law bring us to such a conclusion in this case, for the amendment was made and suggested in the utmost good faith and was well adapted to promote the best interest of all parties concerned.
There is error in the judgment complained of.
In this opinion the other judges concurred.