147 Ill. App. 448 | Ill. App. Ct. | 1909
delivered the opinion of the court.
Plaintiff in error, in his argument, insists that this action is one in tort and defendant in error, in his argument, insists the action is one in assumpsit. Both sides are equally strenuous in their respective contentions. Important rights, of the one party or the other, even to the extent of a question of deprivation of a party’s personal liberty under the judgment to be rendered, frequently depend upon the election of the remedy or form of action. But, under the view we take of the case at bar, it is immaterial' upon what theory of action the suit was prosecuted. In this state it is established beyond question that an attorney may not compromise his client’s claim or receive anything but money in payment, without the client’s assent. Nolan v. Jackson, 16 Ill. 273; Danziger v. Pittsfield Shoe Company, 204 Ill. 145. The arrangement made by Spunner with McIntosh, unauthorized by Heifer, did not bind or in any wise affect Heifer. His rights against McIntosh or Richardson remained, after Spunner’s arrangement, precisely the same as they were before. The only difference in Heifer’s situation was that the note was mutilated by Richardson’s signature being torn off. This in nowise affected the validity of the note; it only created some difficulty in making proof of the note. The mutilation would have to be explained and it might be harder to prove the signature. As a matter of law, McIntosh could not set up the settlement against Heifer and neither could Eichardson. Therefore, Spunner did not deprive Heifer of the note by what he did. "When Heifer learned of what Spunner had done he had the option of repudiating his action and proceeding, as he, Heifer, might see fit, upon his original cause of action, which Spunner’s act had not deprived him of, or he could adopt and ratify the act of his attorney. "Whichever course he adopted the present judgment against Spunner cannot be sustained.
The judgment of the Municipal Court is therefore reversed and the cause is not remanded.
Reversed.
