Hithcock v. M'Gehee

7 Port. 556 | Ala. | 1838

ORMOND, J.

— By the employment of an, attorney at law to conduct a cause in court, a personal trust and confidence is- reposed, which cannot be delegated to another, but by the consent of the person interested.

This proposition is not questioned, and is indeed conceded in the motion which is made in the court below. It is equally certain, that if a delegation thus made without authority, be afterwards assented to by the party interested, with full knowledge of the facts, it will be as binding on him as if made by his authority. It is also true, that if information be seasonably given to the person interested of such unauthorised delegation, and he do not dissent from it, he will be held to have acquiesced in it: both these principles in view, I will now proceed to examine the question.

The proposition contained in the charge, -which the plaintiff moved for, is simply that if the defendant did not dissent from the employment of Perry to conduct the suits, when informed of the fact by the plaintiff, that he must be presumed to have assented to it. To ascertain whether the charge was correct or not, we must consider it in reference to the testimony.

In February, eighteen hundred and twenty-four, the notes were put in the hands of the plaintiff for collection. In January, eighteen hundred and twenty-seven, when the plaintiff is applied to by the defendant for information about the suits, he informs the defendant that the claims have been transferred to Perry — that about five hundred dollars had been collected, of which the plaintiff had received four hundred, on account of some claim he asserted against defendant; — the remaining one hundred had been retained by Perry for his fee, and the residue was not collected. An angry altercation ensued, and the parties separated.

The plaintiff’s counsel, by the charge moved for, have selected a single point of view presented by the testimony, and desired that the jury might be confined to that alone. Had the charge been given as asked for, a great many circumstances highly important to a proper understanding of the case, would have been taken from their notice.

For example, it was the duty of Hitchcock, in a reasonable time after placing the notes in the hands of Perry, to have given his client notice of the transfer. This notice is not given for nearly three years, and then on an application by the defendant to the plaintiff for information, at which time he is informed by the plaintiff, that he had, since the transfer, received from Perry a part of the money, a fact inconsistent with his having constituted. Perry the agent of the defendant. These facts were all necessary to loe considered and weighed, to determine the liability of the plaintiff; yet by the motion of. the plaintiff, they were all proposed to be taken from the consideration of the jury, and the merits of the case rested on a presumption which the jury were to draw from the existence of facts which, under all the circumstances, were of but little importance. Had the information been given early after the substitution, silence would undoubtedly have been a ratification. But to say, that because no dissent was expressed upon information received at such a length of time, and under the circumstances detailed in the testimony, that therefore, assent may be presumed from that fact alone, is a proposition I think not warranted by law. In this case, its manifest tendency was to prevent the jury from considering the whole case. These were facts in the case, from which the jury might have inferred that Perry was not the agent of the defendant, but of the plaintiff, and that in fact there had been no substitution. From taking any such view as this, the jury would have been deprived, by the charge moved for by the plaintiff.

I have not been referred to any case precisely in point, but I think the following cases are analagous—(Bank of the U. S. vs. Corcoran, 2 Peters’ R. 132; Bell vs. Cunningham, 3 Peters’ R. 81; Owings vs. Hall, 9 Peters’ R. 629 ; Amory vs. Hamilton, 17 Mass. R. 109.

Let the judgment be affirmed.

COLLIER, C. J. and GOLDTHWAITE, J. — Not sitting.