Wadsworth v. First National Bank

124 Ala. 440 | Ala. | 1899

HARALSON, J.

1. The Code provides (section 592), that “An attorney has authority to hind his client in any action or proceeding, by any agreement in relation to such cause, made in writing, or by an entry to be made on the minutes of the court.” An agreement in writing, such as an attorney is authorized under this section to make in a cause, if not entered on the minutes, is as binding and will be enforced by the court, in like manner as if it had been entered thereon. The agreement of counsel in this cause in reference to the pleading, appears to have been filed in the cause, but does not appear to have been entered on the minutes. In construction of this statute, this court has held, that its effect, — if the rule did not exist independently of the statute, — Avas “to invest him (the attorney) Avi'th authority to bind his client, in all matters AAdiich relate to the prosecution or defense of the rights of his client, to collect and receipt for him, to sue out and direct process, to make all such preliminary agreements as he may deem necessary to lead to or secure a trial of the cause, and settle by agreement or Avaiver any and all questions Avliicli incidentally arise during the progress of the trial.” — Senn v. Joseph, 106 Ala. 454, 457. Such agreements are as binding on the parties as any other contract into Avliicli they may enter, and will not be set aside except for fraud, collusion, accident, surprise or some ground of this nature. fía; parte Hayes, 92 Ala. 120.

The agreement of counsel in this case related to its prosecution and trial, such as, into Avhich an attorney Avas authorized to enter, and it Avas not pretended that defendant’s attorney Avas guilty of any improper conduct in making the agreement, or was imposed on by the attorney of plaintiff, nor that there was any accident or surprise intervening in making said agreement. There appears to have been no other attorney in the trial of the cause throughout than the one Avho brought the suit, entered into said agreement and filed said plea. There was no error in striking and disallowing said pleas.

2. The court did not err in excluding the note of .July 15th, 1895, for $115.74, payable in 60 days to the Montgomery Iron Works, the assignor of plaintiff. The defendant testified that this was an accommodation note. Woodward ,the plaintiff’s witness, testified, that the note was given to settle defendant’s accounts with said Montgomery Iron Works up to July 1, 1895, and ivas not an acommodation paper. If it was an accommodation note as contended by defendant, and not given as a credit on account, it could not be availed of in this action without a plea of set-off, and there is no such plea in the case. Under the plea of the general issue, as here, a set-off is not available. — Marlow v. Rogers, 102 Ala. 510.

It appears from defendant’s account from his books introduced in evidence, and from the books of the Montgoméry Iron Works, that said note was given to satisfy the balance due by defendant to said company on July 16, 1895, as testified by plaintiff’s witness, and that defendant was mistaken in his recollection, when he stated it was given for accommodation.

3. The proof on the part of plaintiff preponderated, . in onr judgment, to establish the correctness of the account sued on. There was a verdict and judgment for plaintiff for $292.84.

. The defendant moved for a new trial on grounds set out in his motion therefor, Avliich the court overruled. We see no occasion for disturbing this ruling. One of defendant’s grounds for a neAV trial was, that the verdict Avas in excess of the . amount sued for. We have carefully calculated the interest, on plaintiff’s account, and do find that the amount due on the account, on Nov. 8, 1898, the date of the verdict and judgment, Avas $290,-90, instead of $292.84 as rendered, and is too great by $1.94. The judgment Avill be here corrected and rendered for said sum of $290.90, and as thus corrected will be affirmed. — Mock v. Walker, 42 Ala. 668.

Corrected and affirmed.