23 Iowa 391 | Iowa | 1867
That the son was liable for these sex-vices, there is no question. He was the px-incipal, and expx-essly retained plaintiff to prosecute and defend the suits for the services in which, plaintiff charges. And when it appears that the attorney commenced a suit in the name of the principal and surety, at the request of the principal, without at any time seeing the surety, without being requested by such surety to pex-form any services for her, will the single fact that she knew of the px-oceedings, make hex-liable for his services ? It seems to us not, and that this judgment must be reversed.
In the first place, it was the duty of the son to prosecute and defend these actions at his own cost axxd expense. He was the principal, and fii-st liable to pay. He was the party primarily to be benefited. There is no pretense
It was plaintiff’s duty to prove his retainer by the person sought to be charged. This he might do by showing that the defendant called upon him in regard to the business; that she executed his directions in connection therewith; that she was present at the trial while he was managing it in her behalf, or that she spoke of or recognized him in some manner as her attorney. 2 Greenl. Ev. § 139. It may be difficult, in most eases, to prove the original employment, yet some recognition of the attorney during the progress of the suit may certainly be shown, and, without some such proof, it would be unjust and a dangerous precedent to make a party liable. Hotchkiss v. Le Roy, 9 Johns. 142; see also Hopkins v. Mallard, 1 G. Greene, 117; McCulloch v. Robinson, 2 Ind. 630.
Reversed.