Fitch v. Scott, 4 Miss. 314

Mr. Justice Trotter

delivered the opinion of the court.

■ The law implies a promise on the part of attorneys, that they will execute the business entrusted to their professional management, with a reasonable degree of care, skill and despatch, and they are liable to an action, if guilty of a default in either of these duties, whereby their clients are injured. Chitty on Contracts, 166. There must, however, be gross negligence or ignorance, and if the attorney acts to the best of his skill, and with a bona fide degree of attention, he will not be responsible, 4 Burrow’s Rep. 2061. This was the rule laid down by Lord Mansfield in the case of Pitt v. Yalden, in which he remarked that, that part of the profession which is carried on by attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity, and that they ought to be protected when they act to the best of their knowledge and ability. These principles are recognised in the case of Gilbert v. Williams, 8 Mass. Rep. 51, 59. In that case, the court say there can be no doubt that for any misfeasance or unreasonable neglect of an attorney, whereby his client suffers a loss, an action may be supported. An attorney however, is not liable for every mistake, but shall be protected where he acts in good faith. Two things are, therefore, to be shown in order to subject an attorney to an action; 1. gross or unreasonable negligence or ignorance; and 2. a consequent loss to his client. Do the proofs exhibited in this cause make out the points? The note in this case, was placed in the hands of the attorney in August, 1834, in time to have commenced suit upon it to the October term of the circuit court of that county, in the same year. This was undoubtedly the duty of the attorney. And in the absence of any instructions to the contrary, we are bound to infer that such were his engagements. The note was placed in' his hands to be put in suit, and it is repugnant to the very terms of his contract, to infer an authority to delay suit until the second term of the court. The debtors might be entirely able to pay a judgment rendered in October, 1834, and totally insolvent in April, 1S35, and this consideration in all probability might have influenced the creditor to place the note in the attorney’s hands for suit. Be this, however, as it may, we think it was the duty of the defendant to have brought such at the first term, and that in not doing so, he was guilty of unreasonable neglect. This was the view of the court in Palmer’s case, commented upon by Lord Mansfield in Pitt v. Yalden, 4 Burr. 2061. The defendant in t.he suit in which Palmer had been retained, was arrested on bailable process, and by a rule of court was entitled to his discharge on filing common bail, unless declared against, before the end of the second term after his arrest. Palmer let the second term pass without declaring, and the defendant accordingly obtained his discharge. It was held to be a case of gross negligence, for which he was liable to his client. This is very similar to the case before us. The defendant not only permitted a term to pass before suit, but upon the return of the writ to the April term following, dismissed the suit, and surrendered the note to the debtors. The only excuse offered for this remissness is the reputed insolvency of the Platners. But this is no excuse. The suit should have been prosecuted to a final judgment, and then the process for obtaining satisfaction of it, strictly followed up. By doing so, the ability of the debtors to pay the claim, could have been tested by a legal and certain criterion. In the absence of any authority from their client, this was the only legal course of conduct for the attorneys to pursue. Instead of this, however, they take an assignment of a judgment, and deliver the claim to the debtors. An attorney has no authority to compromise the claim of his client, and if he does so, he takes upon himself the consequences of its loss, or the damages which he may sustain. The plaintiff in error was therefore guilty of a violation of his engagement to prosecute the claim of his client with proper diligence. It is a clear case of unreasonable neglect, and he is responsible to the extent of the loss-which his client has sustained. The evidence has furnished us with no criterion of damages save the note which was surrendered. But the plaintiff in error insists that at the time it was exchanged for the judgment it was of but little value. In support of this assertion, he has furnished us with no other evidence than the mere opinions of some three or four persons. The sheriff who was examined before the jury states, that he made the money on all the executions which were in his hands returnable to the April term, 1835, of the Yazoo circuit court, against the Messrs. Platners, and that he had also learned that one of them had a negro, though he had not been able then to find it. Iiow then can we say that if judgment had been obtained at October term, 1834, it might not have been satisfied as others were? In the case before noticed, of Gilbert v. Williams, the attorney disobeyed the instructions of his client to institute suit immediately. And although he did afterwards sue out the attachment, yet the debtor’s property was then covered by liens which defeated the attachment. The attorney gave the indulgence which he did on repeated promises by the debtor that the claim, which was small, should be paid, and his motive was to save the debtor from the vexation and costs of the suit. He appeared to possess ample property to pay that claim and much more. The debtor was, however, as it afterwards turned out, insolvent. Nevertheless, the court held the attorney liable for the whole debt. Because, if he had promptly obeyed the instructions of his client, the debt might have been saved by acquiring a priority of lien. So in the case before us, if the plaintiff in error had complied strictly with his engagement and obtained a judgment in October, it is highly probable the debt would have been saved.. But, we are clearly of opinion, that the surrender of the note to the debtors in this case, renders the attorney responsible for the whole amount due upon it, in the absence of any certain proof, that the creditor has not by s.uch compromise lost his whole debt. That we take to be the only legal inference from the act, and there has been no proof to destroy it. It may be proper to remark, that Mr. Fitch appears never to have had the possession or control of the claim in question, and that every thing done in regard to it was transacted by his late partner. He is not, therefore, justly subject to any blame. He is in law, however, responsible for the acts of his partner. We think the verdict is sustained by the proof.

Let the judgment of the court below be affirmed, with damages and costs.

Case Details

Case Name: Fitch v. Scott

Court Name: Mississippi Supreme Court

Date Published: Jan 15, 1839

Citation: 4 Miss. 314

Court Abbreviation: Miss.