Penniman v. Patchin, 5 Vt. 346

Penniman v. Patchin

5 Vt. 346 | Vt. | 1833

The opinion of the Court was delivered by

Phelps, J.

This is an action of Assumpsit, to recover a sum of money, paid by one T. Brownel to the defendant, *352under the following circumstances. One D. Church, having in his hands as an attorney, for collection, a demand ire favor of the plaintiffs, against Rrownel, and some dispute having arisen respecting it, Church (as it would seem, by consent, or with the approbation of the plaintiffs,) submitted the matter to arbitration. The arbitrators awarded,among other matters, “ that said Brownel pay to said Church, for the said Penniman & Parmalee the sum oí $101,85, as abalance due” on the aforesaid demand. This-demand arising on this award, was afterwards assigned by Church to the defendant, and the amount paid to the defendant by Brownel.

It is admitted that the money in question was the property of the plaintiffs; but various reasons are urged why the plaintiffs should not recover of the defendant in this-action.

And first, it is insisted that the assignment by Church,was effectual to pass the property to the defendant, and that the plaintiffs’ only remedy is against Church.

We think otherwise. An attorney is a special agent.— His powers are limited to the purpose of his employment, and are such and such only, as are necessary for the accomplishment of that purpose. He may take all necessary measures, for the recovery of the demand, obtain judgment, receive the money, and, upon such receipt, give' discharges; but he is not authorised to make any disposition of the demand, or exercise any authority over it, which is not necessarily involved in the discharge of his-duty. Hence he can not compromise a demand, without' special authority for that purpose, nor discharge it without satisfaction. Much less can he assign it for his own benefit ; such an act being not only foreign to the purpose of his employment, but inconsistent with it. A power so liable to abuse (which indeed could hardly be exercised without abuse) can, with no propriety, be admitted. We are all agreed therefore, that the assignment of Church does not authorise the defendant to retain the money.

It is further urged that there is no privity between these parties, and that the law will not imply a promise against the express dissent of the party.

This position is untrue in both particulars. There was *353certainly a privity between the plaintiffs and Church, in delation to this business, he-being their mere agent in the transaction; and if he delegates to the defendant his.authority to receive the money, which he certainly might do, there is the same privity between the plaintiffs and defendant. The circumstance that Church attempted to confer a greater authority than he possessed, does not vary the case. There is a privity between all these parties, as between the principal, the agent, and the sub-agent. If C. had received it, he would have been accountable to the plaintiffs, and if another receives it by his direction, that other receives it, hy an authority delegated in the first instance by the plaintiffs, although transmitted through C, and the accountability continues. The difficulty consists in this, that C. could impart to the defendant no right to retain the money as against the plaintiffs. The authority to receive it he might impart, and this renders the defendant so far as concerns the reception of the money, the agent of the plaintiffs.

Supposing, however, this view of the subject to be incorrect, what is the result ? Simply an attempt, on the part of the defendant, to appropriate the money of the .plaintiffs to his own use. The award itself shewed to whom the money belonged, and, if the purpose of the defendant was to withhold it from the plaintiffs, that purpose can be accounted fpr, only upon some supposed sinister.design. In-this point of view the act was tortious. And the law does in many cases imply a promise, against the express dissent lofthe party. It does so in all cases, where the money of another has been obtained under circuinstances of fraud or circumvention, and where, in equity and good conscience, it canno't be retained. I use the terms in the sense in which they are used in the books, and with reference to the numerous cases, where this action is wielded ito the great purposes of justice. See % S.tarkies Ev. 109, & cases there cited.

The case of Williams vs. Everett, 14 East. 144, has been relied on by the defendant. It bears however no analogy to this. In that case, the money was not received by virtue of any authority, supposed or pretended, from the plaintiff. It was remitted with a view to some negotiation, to *354ke entered into by the defendant E. with the plaintiff W.¿ in relation to the debt due from the person remitting it. The defendant declined the commission; and there was n0 gr0;UKd for holding the money, in that case, to be the money of the plaintiff. In this case, the money was paid to the defendant by direction of the plaintiffs’ attorney, and that, under circumstances which discharged the claim against Brownel- Had this been the fact in the case of Williams vs. Everett, the result would have been different. It is also insisted, that the declarations of the defendant, at the time of receiving the money from Brownel were improperly rejected át the trial. What th© tenor of those declarations was, we are not informed. It was incumbent upon the party excepting, to show enough of their character to enable this Court to judge of their relevancy. But if the object was to show generally, that the defendant acted as the agent of Brownel, it is very certain that they could not be admissible. He had taken an assignment of the debt against Brownel, had received the amount, and discharged the debt. How is it possible then, that any declarations of his could have made him the agent of Brow-nel? The idea of such an agency is inconsistent with th© whole transaction. And the inconsistency of his declarations with the written evidence, was a sufficient reason for their rejection.

The only remaining point in the case, is the question as to the competency of Brownel. It is very clear that a recovery in this case would forever quiet him as to this demand. The facts stated in the case, if followed by a recovery in this action, would show an actual satisfaction to the plaintiffs. And in a future action against the witness, this recovery might be used as evidence, not only of that fact, but also of their adopting the payment made to the . defendant. There is no doubt then, if a recovery is had here, upon the testimony of the witness, he is forever discharged. The County Court went probably upon the ground he was discharged at all events by the payment of the debt, either to Church, or the defendant. The fact being proved, it would probably be so; but the fallacy of the argument is, that he was called to prove this fact, and by his testimony, in this case, to establish that defence. — - *355If that fact were not proved, in this case, he Í3 prima facia liable ; and whether, on another occasion, he could prove it by other evidence, is not for us to determine. It is e-siough for us that he is called to prove a fact which creates a perpetual bar in his favor, and without that fact he is liable still.

The testimony of this witness was probably unnecessary, and why he should have been pressed upon the Court as a witness, after the defendant’s receipt was in evidence, it is difficult to imagine. And were this to be regarded as a motion for a new trial merely, resting in the discretion of the Court, we should hesitate before granting a new trial, on account of testimony, which probably did neither good nor hurt. But a case brought here upon exceptions, stands as upon a writ of error. We can merely reverse or affirm the judgement, and if error has intervened, we have no discretion ; nor can we look farther into the merits of the case, than they are disclosed of record.

On the last point therefore, the judgement of the County Court is reversed, and the cause remanded..