190 A. 398 | Pa. Super. Ct. | 1936
Argued October 29, 1936. The action below was assumpsit against the principal and surety in a certain injunction bond. Plaintiff, an attorney at law, had been restrained by an injunction from transferring a certain stock certificate, then in his possession but belonging to a client and upon which he claimed a lien for professional services, and brought the present suit to recover damages allegedly sustained by reason of the injunction. The principal in the bond was not served and the action proceeded against the surety.
There is no dispute about the facts. At the trial, plaintiff alone offered evidence, which consisted of certain averments of his amended statement of claim together with the corresponding admissions in the affidavit of defense. In order to bring the question of law arising out of the facts before the court in banc, the trial judge directed a verdict for plaintiff for $1300 against the defendant surety company, of which $1000 represented the value of the stock when the injunction issued, and the remainder interest. Defendant moved for judgment n.o.v., which motion the court in banc, after argument, granted. It is from this judgment that plaintiff now appeals.
Smyth, the appellant, bases his right to recover on the following facts. On and prior to November 29, 1930, he had possession of stock certificate No. 145 for 250 *599 and 4/10th shares of preferred stock of the Tourists Hotel Garage Company registered in the name of a client, Edward E. Bratton. Appellant had recovered the certificate for his client as the result of certain litigation, and claimed a lien thereon as security for the payment of a fee of $1500, allegedly owing by Bratton to him for the legal services rendered in that litigation.
On November 29, 1930, Stephen F. Herron, as use plaintiff in a judgment recovered by E.R. French and Company against Bratton filed a bill in equity against Bratton, Smyth and the Tourists Hotel Garage Company, praying for a preliminary injunction restraining Smyth and the company from transferring or disposing of the 250 and 4/10th shares of stock then in Smyth's possession. On the same day, a preliminary injunction was granted as prayed for and an injunction bond filed in the sum of $2000, on which Herron — plaintiff in the bill — was principal and Fidelity and Deposit Company of Maryland, appellee herein, became surety. The injunction bond, which is the foundation of the present action, was conditioned to indemnify appellant and the other defendants in the bill "for all damages which may be sustained by reason of said injunction." A further injunction bond was filed on December 11, 1930, when the injunction was continued, identical in all respects with the first.
The value of the stock in appellant's possession on November 29, 1930, the date of the injunction, was admittedly $1000. Later, December 12, 1931, appellant having brought suit against Bratton for the fee allegedly owing him for his legal services in recovering the stock certificate, obtained a judgment against him in the amount of $1500. On March 21, 1932, the injunction was dissolved. During the period of the injunction the value of the shares of stock represented by the certificate in appellant's possession declined steadily until *600 at the time the injunction was dissolved they were worthless.
In order to recover, it was clearly incumbent upon appellant to show in what respect he suffered damage by reason of the injunction against him.
In Miller et al. v. South Hills Trust Co. et al.,
Again, in Keown v. Mallissee,
Did appellant suffer any damage as the direct and proximate result of the injunction restraining him from transferring the stock? As we gather from his brief, he bases his right to recover here on several theories.
In the first place, he claims he had an attorney's lien on the certificate in his possession, as security for legal services rendered his client, Bratton, the owner of the certificate, and that the injunction destroyed the value of this lien. Assuming, without deciding, that appellant had a right to retain the stock certificate as against Bratton until the latter paid him his fee of $1500 for recovering it, what was the nature and extent of this right or so-called attorney's lien?
Attorneys' liens existing at common law are divided into two distinct classes — the general or "retaining" lien, i.e., the right of the attorney to refuse to surrender documents, papers, etc., belonging to his client, and the "charging lien," or the right to be paid out of a fund or judgment which he has been instrumental in recovering for his client. We are here concerned only with the former. If appellant had an attorney's lien in *602 the present case, it was a retaining lien which simply gave him a right to hold the stock until he was paid his fee by the client, and it did not include the power to sell.
"The retaining lien may be defined as the right of an attorney at law to retain possession of such documents, money, or other property of his client coming into his hands by virtue of the professional relationship, until he has been paid for his services, or until he voluntarily surrenders possession of the property, with or without payment." 2 Thornton on Attorneys at Law, Section 573, page 970. Thornton also states, Volume 2, Section 575, page 972: "The retaining lien is a mere right to retain the papers or other property on which it exists; and while it attaches to every species of property belonging to the client, and which has come to the attorney's possession in the course of his employment, it cannot be actively asserted or enforced."
The rule is stated in Jones on Liens, Volume 1, Section 113, page 106, as follows: "An attorney's general lien is a common law lien founded upon possession, and is a right on the part of an attorney to retain papers or other property that may have come into his possession. . . . . . . Like all other common law liens springing from possession, it is a passive lien, a mere right of retainer, without any power of enforcement by sale." In 6 Corpus Juris 803, Section 426, it is pointed out that the retaining lien confers no power of sale: "It is a mere right of the attorney to retain the papers, etc., of his client in his possession until his claim is satisfied; it confers no further rights, and is valuable to the attorney in proportion to the extent that such retention by him will embarrass the client, that is to say, he cannot sell said papers under process to foreclose his lien, as may a pledgee or a mortgagee in other cases, but his lien extends only to the right to retain such papers until his debt is paid. . . . . ." *603
No Pennsylvania cases have been brought to our attention dealing directly with the technical "retaining" lien. However, our cases, relating mostly to some phase of a charging lien or right of defalcation, as it is designated, show, by their broad language that an attorney has a common law retaining lien in this state.
In Zinsser v. Zinsser,
In Dubois's Appeal,
In general, the right of an attorney to a charging lien, or the right to deduct his fees out of money which he has in his hands belonging to his client, and pay over the balance, is well recognized and enforced in Pennsylvania: Lancaster TrustCompany's Case,
Granting that appellant had a common law attorney's retaining lien, it was simply a right to hold on to the certificate, and gave him no power of sale. This is in accordance with the rule that a bailee's common law lien on personal property conferred no power of sale: Rodgers v. Grothe,
The Act of December 14, 1863, P.L. (1864) 1127,
We are, therefore, unable to see that appellant sustained any damage by reason of the injunction, the only effect of which was to prevent him from disposing of the certificate. The injunction in no way interfered with his right of possession under his alleged attorney's *605 retaining lien. In fact, it might be said that the injunction simply further reinforced the lien by directing that appellant should continue in possession of the certificate. If appellant's right of possession had given him a right to sell or dispose of the stock certificate, an entirely different question would be presented and, under the ruling of this court in Miller et al. v.South Hill's Trust Co., supra., the restraining order might, under such circumstances, have been a direct cause of loss, or damage to him. But that is not the case now at bar.
Although deprivation of his alleged right to sell the stock is the ground of recovery set up in his statement, it is also argued by appellant that he is not suing for loss of his lien, but primarily for the destruction or loss of the value of the property bailed; that since he was a bailee of the certificate, he is entitled, as against appellee, to recover the entire value of the stock by reason of the destruction of the subject matter of the bailment. There can be no doubt about the rule that a bailee in possession of personal property, is entitled, as against a third party, to recover the full value of the bailed property in case of its destruction or conversion by the third party, the bailee being liable over to the bailor for any damage recovered in excess of his interest: McCrossan v. Reilly,
Our conclusion is that judgment was properly entered in favor of the defendant surety, notwithstanding the verdict, because appellant failed to show he sustained any damage as the direct and proximate result of the issuing of the injunction.
Judgment affirmed.