Willard v. Town of Danville, 45 Vt. 93

Willard v. Town of Danville

45 Vt. 93 | Vt. | 1872

*96The opinion of the court was delivered by '

Peck, J.

The case states that “ the only question litigated was whether Mr. Stoddard had authority to employ assistant counsel,” and therefore this is the only question before this court. It appears that Puller was the town agent of Danville for the year 1866, and as such, in the time of his agency,- employed Stoddard as attorney to defend the suit, Howard against Danville, in which the plaintiff, under an employment by Stoddard, at the June term of the county court, 1867, rendered the services as assistant counsel, for which ha claims to recover. Weeks was the town agent for the year 1867, and it appears that he had an interview with Stoddard prior to the trial at the June term, 1867; and learned what witnesses would be wanted, and summoned them, and had them in attendance, but did nothing further about the trial, and was not present at the trial, and the case states that it was not, claimed that Weeks gave Stoddard any authority to employ assistant counsel. Therefore, so far as any such authority in fact can be claimed to have been conferred on Stoddard, beyond what would result as matter of law under the circumstances, from his employment as attorney to defend the case, it must depend on the employment of Stoddard by Puller. This question of fact was left to the jury under a charge as favorable to the plaintiff as he could reasonably ask. It is evident from the portion of the charge given in the exceptions, that' the jury, in order to find for the plaintiff, were not required to find that authority to employ assistant counsel, was, in express terms, given to Stoddard; but that they were allowed to infer from the facts and circumstances proved in the case that such authority was given. But the jury have found that no such authority was given. Had the jury found such authority given, then under the charge, in accordance with the defendant’s first request, which the case states was substantially complied with, the verdict must have been for the plaintiff.

But it is insisted on the part of the plaintiff, that he was entitled to a charge according to the second request, which is, “ that if the jury find that the town agent resided in another town from where the court was held, and that he left to Mr. Stoddard the sole care and responsibility of the trial of the case, and Stoddard *97employed the plaintiff to assist him, the town would be liable.” To determine the correctness of this proposition, it must be viewed in connection with other facts in the case not in dispute. It appeared that the town agent resided in another town than that in which the .trial was, and did not attend the trial; but it appeared that, preparatory to the trial, he had an interview with Stoddard, and learned what witnesses, were necessary, and summoned them, and procured their attendance at the trial; so that the whole preparation of the case for trial, as appears by the conceded facts in the case, was not left to Stoddard. This, together with the further fact in the case, that it was not claimed at the trial that Weeks, the_ town agent, gave Stoddard any authority to employ assistant counsel, leaves no ground on which the plaintiff can be entitled to a charge in accordance with this second request,unless, as matter of law, Stoddard had authority to employ assistant counsel, by virtue of his employment as attorney to defend the suit. As a general rule, an attorney employed as such in a cause, has not thereby the incidental power to pledge the credit of his client by employing another attorney as an assistant. This was held in Paddock v. Colby, 18 Vt. 485. In Briggs v. Georgia, 10 Vt. 68, the same principle is recognized. Where the facts' ,in a particular case are such that it may fairly be inferred from them that such authority was given, this general rule would yield. So far as this inference is a question of fact, the plaintiff in this case has had it submitted to the jury, and the jury have found against him. But it is insisted on the part of the plaintiff, that in view of the fact that the town agent, Weeks, was absent from the trial, and left Stoddard to conduct the trial without his attendance, authority in Stoddard to employ assistant counsel is implied as matter of law. It is true, an agent of a foreign principal; so distant that he has not time to communicate with him for instructions, is sometimes held to have authority in an unexpected emergency, that he would not have if his principal were present, or so near as to afford, an opportunity seasonably to consult him. The same principle applies to an attorney at law, in a case proper for its application; and under peculiar circumstances, authority to employ assistant counsel would be implied. In this case, how*98ever, Weeks, the town agent, resided in the vicinity of the residence of Stoddard, and of the place of trial, in an adjoining town; and nothing appears indicating that he might not have been seasonably consulted on the subject of employing assistant counsel ; nor docs it appear that anything transpired, or came to light, rendering assistant counsel necessary, which was not known to Stoddard and Weeks at .their interview when they determined upon the necessary preparation for the trial. It is evident from the report of Paddock v. Colby, that the client of the attorney who employed assistant counsel was not present at the trial. It is fairly to be inferred from the auditor’s report, although it is not so stated in express terms, and the counsel in that case, on both sides, evidently so considered it in their briefs as reported.

The case at bar comes within the general rule on this subject, and the plaintiff’s exceptions cannot be maintained.

Judgment affirmed.