Jubilee Placer Co. v. Hossfeld

20 Mont. 234 | Mont. | 1897

Buck, J.

Appellant states as a proposition of law that although an attorney has authority, by virtue of his employment as such, to do all acts which affect the remedy in a suit, still he cannot, by virtue of his employment alone, do that which destroys his client’s cause of action; citing in support of this contention Derwort v. Loomer, 21 Conn. 245; Holker v. Parker, 7 Cranch, 436; Stokely v. Robinson, 34 Pa. St. 315; Lambert v. Sandford, 2 Blackf. 137; People v. Lamborn, 1 Scam. 123; and Jones v. Inness, 32 Kan. 177, 4 Pac. 95.

The respondent does not dispute this statement of the legal principle controlling an attorney’s authority. This appeal, then, depends solely upon the answer to the question of whether or not Parker had authority to stipulate as he did.

A careful inspection of the evidence (all that is pertinent to the question being contained in the statement of facts prefixed) forces us to the conclusion that whatever authority Parker had to enter into the stipulation he did arose from the letter written him by Willson in reply to his own notifyingWillson of the terms of the proposed settlement. Parker’s, explanation of the purpose for which he instituted the action, in 1891 is unsatisfactory and obscure. He virtually concedes. that the decree of 1874 was as effective as that which he stipulated for in 1891. His statement that he entered into this stipulation pursuant to the conversation which he had with Willson at the time of instituting the suit is immaterial. His testimony, simmered down, is that he construed Willson’s letter as conferring authority upon him to stipulate as he did. Examining the contents of this letter carefully, we do not think his construction of it was justified. Nothing is said in this letter in reference to any decree being entered in the suit. It authorizes a dismissal of the suit, and nothing more. Taking all the circumstances of this controversy into consideration, we believe it would be unsound to hold that this letter conferred any such authority as defendant claims.

The judgment is reversed and the cause remanded, with directions to the lower court to enter judgment for the plaintiff in accordance with the prayer of its complaint.

Reversed and Remanded.

Pemberton, C. J., and Hunt, J., concur.