8 Md. 169 | Md. | 1855
delivered the opinion of this court.
The record in this case shows the following state of facts: A mercantile firm, under the style and name of Carter &. Washington, in the city of Washington, D. C., were indebted to merchants in the city of Baltimore. Washington, by transfer, as it was alleged, had conveyed the joint assets to secure the payment of his own debts to the exclusion of those of his partner, Garter. The creditors of both, in the city of Baltimore, being desirous of having the property appropriated to the payment of the debts of the firm, appointed a committee in the following words, to superintend and guard their interests:
“We, the undersigned creditors of Carter & Washington, agree to contribute, ratably, our proportion of all expenses incurred, (agreeably to the amount of our claims,) in any legal or other proceedings which have or may be taken by A. B. Davidson, C. A. Hall and T. W. Hall, in reference to the assignment and bill of sale made by R. C. Washington, for the benefit of B. F. Gardner and Franklin Gardner; and we do hereby further agree to indemnify them against all loss for any liabilities assumed, or security given by them or by Henry Carter, of the late firm of Carter & Washington, in any further proceedings which may be taken by him or them, under the advice of their counsel, J. H. Bradley, Esq., of Washington. Given under our hands this 19 th day of June 1846.
Signed, Harrison & Co.,
Davidson &- Sanders,
Hall, Taylor & Co.,
Camper &■ Bruñe,
Marriott, Marye & Co.,
W. H. Harrison & Co.,
Spilker & Alberti.”
In pursuance of this authority Sanders and Thomas W. Hall went to Washington, assuming to act on behalf of their own firms, and as representatives of the other creditors of Carter and Washington, to advise with counsel and take measures to oppose the deed of Washington. They employed Joseph H. Bradley, Esq., as counsel, to file a bill for an injunction and to set aside the deed. Hall returned to Baltimore, leaving
Mr. Bradley testifies that he requested the appellant, White, to go on the bond, but he positively refused to do so, unless he had some written evidence of indemnity. Bradley then informed him that both Hall and Sanders had distinctly agreed, that if such security could be got, the creditors whom ■ they represented would indemnify the security; that on the same day, White being in the office of the witness, the latter then, in the presence and with the privity and consent of Sanders, wrote the following letter:
«Mr. W. G. W. White,
Dear Sir: — If the judge grants the injunction to-day, Mr. Garter will have to give security of course. It is very important that none of the creditors should join in the bond, for I may want to make them or some of them witnesses. I have their authority for saying, that if this thing is done they will release Garter, and indemnify any one who goes his security. The penalty in the bond will probably be two thousand dollars, or possibly $5000, but the risk cannot be any more than the loss on the postponed sale of goods, and the interest on their value and the expense of keeping them. Under these circumstances I have suggested to Mr. Carter to ask you and Ur. Gunton, as the friend of Mr. Davidson, (or some other gentleman here,) to join him in the bond.”
In reply to certain interrogatories propounded to Thomas W. Hall and others on behalf of the appellant, he states in substance, that he, in company with Mr. Davidson, visited Washington city, and there endeavored to get Carter to take legal measures to have set aside the deed of Washington, and, as an inducement, promised to procure a release from his firm and that of Davidson &> Sanders, of all liability for what he was indebted to them. That Sanders, who was then the partner of Davidson, went to Washington without any appointment from the creditors of Carter Sp 'Washington constituting him their agent, for the purpose of taking the place of his partner, the said Davidson. He also denies that any arrange
The answer of Carter A. Hall and that also of Alexander B. Davidson explicitly denies the authority of Sanders to bind the creditors as he sought to do, according to the testimony of Bradley.
This statement of the facts is sufficiently full to present the questions of law arising out of the case.
The theory of the appellant’s case is simply this: — he claims to be indemnified for his loss because of the recovery had against him on his bond: first, because of a specific contract to that effect; and second, that the employment of Bradley, as counsel, to file a bill for an injunction necessarily carried with it authority to do all things essential to its procurement, and, if to such end, a bond was indispensable, be had the right to promise an indemnity to any one who should become security on it, which w'ould be binding on those whom he represented.
As to the first proposition: it involves a question of fact only, to wit, the existence of the contract. Bradley states that Thomas W. Hall and Sanders authorized it; Hall on the other hand denies it. From Sanders we have no response except that which is detailed in the answers of the two Halls and Davidson. Mr. Bradley states that Thomas W. Hall, at an interview had between him, witness and Sanders, “produced a paper and said they were authorized by the creditors who signed that paper to come to Washington and employ said Bradley to enjoin the sale, which was advertised to take place.” He did not, however, “read said paper or see the names signed to it.” The only written authority to anyone to superintend and manage the rights and interests of the Baltimore creditors, of which there is any evidence, is that bearing date the 19th day of June 1846. This must have been the one produced by Thomas W. Hall, and had Mr. Bradley examined it he would have seen it conferred no authority
Assuming then the facts to be as testified to by Mr. Bradley, we are of opinion that the defendants, either in whole or part, are not responsible to tire appellant. The employment of counsel does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who may become security in the progress of the suit. The power of an attorney is very extensive, but it is not equivalent to that of his client. As such, it has been doubted, to say the least of it, by high authority, whether he may make a compromise,-although he may submit a cause to arbitration. Holden and others, vs. Parker, 7 Cranch’s Reports, 434. It is true, if the compromise be bona fide and work no considerable hardship, courts will be slow to disturb it, and they will refuse to do so when it has been acquiesced in with a full knowledge of the facts. In the case before us, there is no evidence the facts were ever communicated to the defendants; so far from it, those of them who have been examined expressly deny all knowledge of the
We do not think the action of Hall and Sanders, as testified to by Bradley, binding on the firms of which they were members, uidess they subsequently acquiesced in it. There is not only no proof they ever did so, hut on the contrary, the evidence is distinct and uncontradicted, that they neither authorised or subsequently ratified what was done by Mr. Bradley in so far as his engagement with appellant is concerned.
The question involved in the case is not, strictly speaking, one of the authority of a partner to bind his co-partners, but one of agency. Mr. Bradley was distinctly notified the agency had been created and defined by a written instrument. Had he consulted it, as, perhaps, it was his duty, he would have seen that the agency had been delegated to three persons and not to one. A power to three cannot be executed by one of them; nor is there anything clearer or better established, than that an agent cannot delegate his authority to another, the maxim being delegatus non, potest delegare.
There is no necessity for our examining in detail the prayers, inasmuch as the views we have expressed plainly indicate our opinion to be, that in the case made by the record the plaintiff cannot recover. We think, however, there can scarce be a doubt, that on the facts contained in it, an action could be maintained against M.r. Sanders and a recovery had against him.
Judgment affirmed.