32 Misc. 135 | N.Y. App. Term. | 1900
Lead Opinion
The action was commenced on July 11, 1895, and is brought to recover for merchandise, consisting of stone, sold and delivered to the defendant by the plaintiff, at prices agreed
The defendant did not pay the plaintiff’s claim in full for the stone, and considerable negotiations took place between the parties. The president of the plaintiff, Mr. Jas. S. Williams, came to ¡New York early in April, 1895, apparently for the purpose of collecting from the defendant the amount of the plaintiff’s claim. On or before April 13, 1895, Mr. Williams placed the claim in the 1 lands of Jacob Fromme, Esq., an attorney and counsellor-at-law of this city, for collection. On April 13, 1895, Mr. Fromme wrote to the defendant, informing him of his retainer by the plaintiff, and added: “ If the above amount is not paid to me, at my office, on or before Monday, April 22, 1895, 1 shall have to resort to legal proceedings for the recovery thereof.” On this same day — whether before or after the receipt of Mr. Fromme’s letter does not appear — the defendant wrote to Mr. Williams inclosing two-notes of $500 each, and stating as follows: “ As soon as we get an adjustment of the stone, I will likely send you .check for the balance of the account.” It should be noted here, as we have already seen, that the return for a considerable portion of the stone had not at this time reached the plaintiff. On April 19, 1895, Mr. Fromme wrote the defendant, returning these two notes for $500> each, that the defendant had sent to the plaintiff, and stating in the letter that Mr. Williams had forwarded them, with instructions to return them at once; and Mr. Fromme then reiterated the demand for a settlement at his office, contained in his letter of April thirteenth above mentioned. During the cross-examination of the defendant, the plaintiff introduced in evidence this letter of April nineteenth. Upon the redirect examination of the defendant, his counsel offered in evidence a letter written by Mr. Fromme two days before the commencement of this action, which letter defendant testified he received about the time of its date, to wit, July 9, 1895. It was objected to by the plaintiff’s counsel as incompetent, and excluded on the ground that it was not shown that Mr. Fromme was authorized by the plaintiff to write the letter. To this ruling the defendant’s counsel duly excepted. The letter is as follows:
“ George W. White, Esq.
“Dear Sir.— When Mr. Arlando Marine was requested and designated by me to go over with you your accounts with the
We think the act of Mr. Fromme in writing this letter was within the scope of the authority conferred upon him by the plaintiff, that it was competent evidence, and that its exclusion was grave error. The plaintiff put in evidence the letter of April nineteenth, from Mr. Fromme to the defendant. The plaintiff’s president, Mr. Williams, had testified that prior to April 13, 1895, Mr. Fromme had been retained by the plaintiff, and authorized to bring-suit, and when questioned, Mr. Williams said that Mr. Fromme did not write the letter of April thirteenth without his authority. Mr. Williams had sent the two notes for $500 each to Mr. Fromme, who returned them to the defendant as instructed to do by Mr. Williams. Mr. Fromme continued to act as the plaintiff’s attorney in
“ Mr. George W. White.
“ Dear Sir.— In reference to the claim of the Stinesville & Bloomington Company against you, the amount of which you dispute, I am perfectly willing that Mr. A. Marine, of New York city, should go over your accounts, measurements and adjustment, and everything else which you desire to exhibit; and the amount that Mr. Marine finds due from you to said company, I will accept for the company, in full of all, claims that it has against you. Yours truly, Jacob Fromme.”
This letter was ruled out by the trial justice. The defendant, however, was allowed to show that, subsequent to the receipt of
For the foregoing reasons, we are of the opinion that the judgment of the General Term and of the Trial Term should be reversed, and a new trial ordered, with costs to appellant to abide the event.
Gildersleeve and Giegerich, JJ., concur.
Dissenting Opinion
I feel constrained to dissent from the conclusion of the majority of the court. I am satisfied that a general retainer to prosecute a claim does not import the existence of authority on the part of the attorney, before action brought, to consent to an arbitration of his client’s cause. It was, therefore, necessary for the defendant to show either specific authority so to do from the plaintiff to its attorney, or a subsequent ratification by it of his acts in order to justify the admission in evidence of the agreement to arbitrate which said attorney assumes to make. While the question may be a close one, I am unable to find in the record sufficient evidence to support a finding that any such authority existed, or that there was a ratification of the attorney’s act by his principal. The mere unsworn declarations of the attorney importing the existence of such authority can hardly be accepted as competent proof on this point. The judgment should be affirmed.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.