Vail v. Conant

| Vt. | Feb 15, 1843

The opinion of the court was delivered by

Hebard, J.

Has an attorney, without special authority,

Power t0 compromise and settle his client’s cause of action, without receiving the full amount of his claim? It has been insisted, in argument, that the attorney, in this case, had some more general powers conferred upon him, by the terms of his employment, than is incident to an attorney in ordinary cases; — and this is sought to be established by a letter from the plaintiffs to Joshua Sawyer, Esqr., one of the plaintiffs’ attorneys. But it cannot fairly be established from the letter. Sawyer, before that, had been employed by the plaintiffs, and this letter was written in answer to one from Sawyer to them. In the letter, the plaintiffs say, — “ We wish our debt against Jackson to be kept secure, and put in a shape that we shall realize the money, as soon as will be consistent. As we are not familiar with your laws, we shall have to rely, in a measure, upon your judgment and discretion, in managing the business.” From the foregoing, we see that the plaintiffs declined giving their attorney any directions, only to pursue out the original purpose, in his judgment and discretion ; and from that, also, we learn that the only purpose was the collection of the money. Having received a letter from their attorney, it would be very natural to make some reply, and we can hardly see what they could have said less than they did. As there is nothing contained in the letter which varies the powers and discretion of the attorney, it becomes important to inquire what are the powers and authority of an attorney, which are incident to the trusts and duties he has to perform!

An attorney at law, in Jacob’s Law Dictionary, is defined to be “a person who takes upon himself the business of other men, by whom he is retained.”J/ The particular duties, and powers of an attorney, to bina his client by his acts, have been somewhat considered by courts. At one time it was doubted whether payment to an attorney, was payment to his principal; but this was decided as being incident to his powers, in 1 H. Black. R. 8. Since that, the power of attornies, as agents for their employers, has been variously considered. It, however, has been fully settled, that they have the control of the suit in which they are retained, so far, at least, as to bind their clients by all their agreements in relation to all the circumstance of the trial. He may agree to a con^ tinuance ; or he may admit a fact on trial, which, otherwise, the opposite party must prove. He may agree upon the formH and time of trial; and it would seem by the authorities referred to in the case of Gorham v. Gale, 6 Cow. 739, that he may submit his client’s cause to an arbitration, so as to bind his client. But it is held, in the same case, that an attorney cannot “entera retraxit, or discharge a defendant from execution without payment.” But it is urged that the attorney, in this case, did not intend to bind his principal; or if he so intended, that the writing is not so drawn as to have that effect. We think the paper, although inartificially drawn, is well enough to bind the plaintiffs, if he had that power. He describes the suit and the cause of action, and the parties, . and signs his name as attorney, which is sufficient in a case where he has power to do so. But we think he has not that power. The current of authorities is against it. In the case of Bell v. Mason, 10 Vt. R. 509, the judge, in delivering the opinion of the court, says, that it may be doubted whether an attorney, in any case, can borrow money to prosecute an action, and pledge the credit of the client, and render him responsible.” If the attorney could not borrow money to prosecute his client’s suit in a case of necessity, to save the suit from being lost, and bind his client for the! payment of it, it is most clear that the powers of the attorney j are confined to the prosecution or defence of the suit, and^ that he has no power to compromise and agree upon terms _and conditions of settlement.

In Penniman v. Patchin, 5 Vt. R. 352, a similar doctrine is held. In that case, the power of the attorney to make any disposition of a demand, is denied.

The case of Gailord v. Smart, 6 Cow. 385" court="N.Y. Sup. Ct." date_filed="1826-10-15" href="https://app.midpage.ai/document/gaillard-v-smart-5464717?utm_source=webapp" opinion_id="5464717">6 Cow. 385, cited by defendant’s counsel, clearly recognizes the doctrine that an attorney cannot give a release to a cause of action, although he may enter a discontinuance, — because that does not discharge the cause of action, The plaintiff may commence a new suit in that case.

Judgment affirmed.