State ex rel. Bank of Missouri v. Hawkins

28 Mo. 366 | Mo. | 1859

Soott, Judge,

delivered the opinion of the court.

Under the contract with the bank for the collection of her debts, we are of the opinion that Anderson was entitled to his commission for collecting the judgment in the suit which has given rise to this controversy. As he had performed all that was necessary to receive the money, he was, under the contract, entitled to his fee, and the bank could not, by refusing to reappoint him to the office he held, deprive him of it. Anderson held a double relation to the bank — one growing out of his appointment as her attorney, and the other arising from the contract in relation to the collection of her debts. The termination of one of these relations did not necessarily destroy the other. There need have been no misunderstanding on this subject, as the bank could have made her contracts in such way as to avoid all controversy. The interpretation we give the, contract subjects the bank only to the payment of one commission, and, as between Anderson and his successor, justice would award it to Anderson.

But this suit is not against Anderson, but against the sheriff, who, by Anderson’s order as attorney for the bank, returned the execution satisfied. The bank maintains that this return is false, that Anderson was not her attorney, and that he had no right to receive the money. Anderson, after receiving the money, tendered to the bank the amount less his commission, but she refused to take it, insisting on her right to the whole without any deduction by way of fee or commission. Anderson was the attorney for the bank, appointed for two years by a resolution of the board of directors, and obtained the judgment, on which the execution was issued, before his term expired, but did not receive the money until he was replaced by another in his office. He was the attorney of record for the bank in the suit in which the execution issued. So he was a general attorney for the bank and he was the attorney of record in the suit in which he received the money.

The attorney of record is authorized to receive the money collected on a judgment recovered by him for his client. Those dealing with such an attorney can not be affected by any private arrangements between the attorney and client by which the extent or duration of the power of the former may be limited. The books say that an attorney of record can not be changed but by an order of court. There is some policy in this rule, as by our statutes the attorney of record in some cases is made the person to receive notices. If a change of attorney can be made secretly without any notice, a door would be-opened for collusion by which these statutes would be evaded and suitors might be entrapped.

There is nothing which prohibits a client from authorizing as many persons as he pleases to receive his money, and if they do receive it, so far as he is concerned, he will be bound by their act. But if there is an attorney of record, the authorizing of another by a client to receive the money on an execution does not divest an attorney of record of his authority. The client may authorize as many as he pleases to act for him without intending to revoke any authority he has previously bestowed. So equivocal an act as an authorization to another to receive money would not be notice that the attorney of record was displaced. Had the defendant known that Dry den was the attorney of the bank at the time he paid the money to Anderson, that would have been no notice that the authority of Anderson, as attorney of record had been revoked. No opinion is given on the question whether an attorney of record can be changed otherwise than by leave of the court. In my opinion, there is no evidence here that Anderson’s authority as attorney of record had been recalled such as should affect any one dealing with him in that character.

Napton, Judge, concurs in affirming the judgment.