Page images
PDF
EPUB

seems to be, that, on common-law principles, the covenants in the deed constitute a sufficient consideration for the notes, and that the failure of title constitutes no ground of defence to an action upon them. In some of the United States, however, this defence has been allowed.2

§ 136 a. Entire contract. Where the contract is entire, the general rule is, that if the plaintiff has failed to perform the whole on his part, he can recover nothing; for being entire, it cannot be apportioned. And this rule has been often applied to contracts for labor and service for a certain term of time, where the party had served only a part of the time. But it is also conceded, that if the part performance of a contract is beneficial to the promisee, and has been accepted by him, though the other party can maintain no action upon the original contract, his part of which he has failed to perform, yet he may maintain a general assumpsit for the actual value of his labor and materials which the promisee has accepted and enjoyed. Whether the defence of failure of performance of the entire contract can be sustained in an action for the value of labor and services, upon the common counts, is a question upon which judges are not perfectly agreed. On the one hand, it has been maintained with great force of reason, and so adjudged, that the party contracting for labor merely, for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if performance is commenced ; and with knowledge, also, that the other may eventually fail of completing the entire term; and that, therefore, he ought to pay the reasonable value of the benefit, which, upon the whole, he has thus derived, over and above the damage which may have accrued to him from the non-performance of the original contract. But the general current of decisions is to the contrary; the courts holding that this case is not to be distinguished in principle from other cases of failure to perform an entire contract.

1 Lloyd v. Jewell, 1 Greenl. 352, and n. to 2d ed.; Howard v. Witham, 2 Greenl. 390; Knapp v. Lee, 3 Pick. 452; Vibbard v. Johnson, 19 Johns. 77; Whitney v. Lewis, 21 Wend. 131, 134; Greenleaf v. Cook, 2 Wheat. 13; Fulton v. Griswold, 7 Martin, 223; 22 Am. Jur. 26; 2 Kent, Comm. 471-473.

2 2 Kent, Comm. 472, 473; 22 Am. Jur. 26. 8 Britton v. Turner, 6 N. H. 481.

• See Stark v. Parker, 2 Pick. 267 (2d ed.), notes ; Olmstead v. Beale, 19 Pick. 528; Pordage v. Cole, 1 Saund. 320, n. (4); Peeters v. Opie, 2 Saund. 352, n. (3), by Williams; Badgley v. Heald, 5 West. Law Jour. 392.

ATTORNEYS.

$ 137. Attorneys at law. Under this title, it is proposed to treat only of Attorneys at Law, and of the remedies in general, and at common law, between them and their clients, the subject of attorneys in fact having been already treated under the head of Agency. The peculiar remedies, given by statutes and rules of court, in England, and in some few of the United States, being not common to all the American States, and applicable to but few, will not here be mentioned.

$ 138. Suits for fees, and injuries to professional character. Actions by attorneys, as such, are ordinarily brought either to recover payment for fees, disbursements, and professional services, or to recover damages for slander of their professional character. In the latter case, it seems generally necessary for the plaintiff to prove, by the book of admissions, or by other equivalent record or documentary evidence, that he has been regularly admitted and sworn; with proof that he has practised in his profession.' (a) But where the slanderous words contained a threat by the defendant that he would move the court to have the plaintiff struck off the roll of attorneys, this was held an admission that

1 Jones v. Stevens, 11 Price, 235. And see Green v. Jackson, Peake's Cas. 236.

(a) It has been held that a statutory pro- of a State was not a privilege or immunity vision limiting the right to practise as an belonging to citizens of the United States attorney at law to free white male citizens as such, and consequently was not under was not obnoxious to the fourteenth amend the protection of the fourteenth amend. ment of the Constitution of the United ment. The court of Maryland accordingStates. Re Taylor, 48 Md. 28. The four- ly refused admission to the bar to a negro teenth amendment provides, inter alia, that applicant. Re Taylor, 48 Md. 28. "no State shall make or enforce any law In regard to the admission of women which shall abridge the privileges or im- to the bar, it may be said, in general, that munities of citizens of the United States." in absence of express statutory provisions The United States Supreme Court, in the the courts have considered themselves obSlaughter House Cases, 16 Wall. 36, held liged to refuse them admission. Re Goodthat the amendment had reference only to ell, 39 Wis. 232; Re Bradwell, 55 Ill. 535; the rights and immunities belonging to Robinson's Case, 131 Mass. 376; Lockcitizens of the United States as such, as wood's Case, 9 Ct. of Cl. 346, p. 356. But contradistinguished from those belonging in some States statutes have been passed to them as citizens of a State. And in authorizing the admission of women to Bradwell v. State, 16 Wall. 130, the same practice as attorneys at law. Wis. R. S. court held that the right to be admitted to (1878) 8 2586; Mass. Stats. 1882, c. 139. practice as an attorney at law in the courts

the plaintiff was an attorney, sufficient to dispense with further proof.

§ 139. Retainer. When the suit is by an attorney, for fees, etc., he must prove his retainer, and the fees and services charged. The retainer may be proved by evidence, that the defendant attended upon the plaintiff, at his office, in regard to the business in question; or, that he personally left notices or executed other directions of the plaintiff; or, that he was present and assisting at the trial, while the plaintiff was managing the cause in his behalf; or, that he has spoken of the plaintiff, or otherwise recognized him, as his attorney.? (a) If the retainer was to commence a suit, which was afterwards abated by a plea of non-joinder, this is sufficient evidence of authority to commence another suit against the parties named in the plea. So, after an award made against a party, a retainer to “do the needful,” is an authority to do all that is necessary on the part of the client, to carry the award into complete effect. So, where money was placed in the attorney's hands to invest for his client, with discretionary power “to do for her as he thought best," and he lent the money on mortgage, but, discovering that the security was bad, sued out a bailable writ against the borrower, in his client's name, it was held a sufficient retainer for this purpose. It has, however, been laid down as a general rule, that a special authority must be shown to institute a suit, though a general authority is sufficient to defend one; and accordingly, where one, acting under a general retainer, as solicitor, undertook to defend a suit at law brought against his

i Berryman 2. Wise, 4 T. R. 336; ante, vol. i. $ 195, n.

2 Hotchkiss v. Le Roy, 9 Johns. 142; Burghart v. Gardner, 3 Barb. S. C. 64. Sworn to an answer signed by the attorney. Harper v. Williamson, 1 McCord, 156. But where one attorney does business for another, it is presumed to be done on the credit of the attorney who employed him, and not of the client. Scrace v. Whittington, 2 B. & C. 11. 3 Crook v. Wright, Ry. & M. 278.

4 Dawson v. Lawley, 4 Esp. 65. 6 Anderson v. Watson, 3 C. & P. 214. But see Tabran v. Horn, 1 M. & R. 228.

(a) The authority of an attorney who the services of a counsellor at law who acts has been employed by a director, or other as senior counsel at the trial, in his presanalogous officer, of a corporation, to ap- ence, in consultation with him, and withpear for it, without any specific vote there out objection from him, under a retainer for, and who has been paid for his services for that purpose by the attorney of record, by the corporation, is sufficiently proved. although there was a secret agreement beField v. Proprietors, &c., 1 Cush. (Mass.) tween him and the attorney of record that 11. See also Manchester Bank v. Fellows, such services should be paid for by the 28 N. H. 302. A party to a suit, in which latter. Brigham v. Foster, 7 Allen (Mass.), the employment of senior counsel is neces- 419. sary, is liable for the reasonable value of

client, upon certain promissory notes, and filed a bill in chancery to restrain proceedings in that suit, the bill was ordered to be dismissed, with costs, to be paid by the solicitor, as having been filed without authority. If two attorneys occupy the same office, one being ostensibly the principal, and the other his clerk, under an agreement that the latter shall receive all the benefit of the common-law business, those who employ the persons in the office will be presumed to employ them upon the terms on which business is there done; and, therefore, in a suit by the clerk for the fees of common-law business, those terms are competent evidence of a retainer of him alone. So, where two attorneys dissolved an existing partnership between them, but a client, with means of knowledge of that fact, continued to instruct one of them in a matter originally undertaken by the firm, this was held sufficient evidence that the joint retainer had ceased.3

§ 140. In case of partnership. But where solicitors are in partnership, they cannot dissolve their partnership, as against the client, without his consent, so as to discharge the retiring partner from liability ; much less can the retiring partner, in such case, accept a retainer from the opposite party.

$ 141. Effect of retainer. The effect of a retainer, to prosecute or defend a suit, is to confer on the attorney all the powers exercised by the forms and usages of the court in which the suit is pending." (a) He may receive payment;6 may bring a second suit

| Wright v. Castle, 3 Meriv. 12.

? Pinley v. Bagnall, 3 Doug. 155. So if both, being partners, were in fact employed, but only one was an attorney of the court, and did the business there, yet both may jointly recover. Arden v. Tucker, 4 B. & Ad. 815 ; 5 C. & P. 248. Unless the other was but a nominal partner. Kell v. Nainby, 10 B. & C. 20. And see Ward v. Lee, 13 Wend. 41 ; Simon v. Bradshear, 9 Rob. (La.) 59.

3 Perrins v. Hill, 2 Jurist, 858.

4 Cholmondeley (Earl of) v. Lord Clinton, Coop. Ch. Cas. 80 ; 8. c. 19 Ves. 261, 273; Cook v. Rhodes, 19 Ves. 273, n. ; Walker v. Goodrich, 16 Ill. 341.

5 Smith v. Bosard, 2 McCord, Ch. 409.

6 Langdon v. Potter, 13 Mass. 320 : Brackett v. Norton, 4 Conn. 517 ; Gray v. Wass, 1 Greenl. 257; Erwin v. Blake, 8 Pet. 18 ; Com's v. Rose, 1 Desaus. 469; Hudson v. Johnson, 1 Wash. 10; Ducett v. Cunningham, 39 Me. 386.

(a) Where a sworn attorney of the fied, the party cannot give evidence, on court enters his appearance for a party, the trial of the cause, that the attorney the party, is bound by any admissions had no authority in fact. Lewis v. Summade by him in writing, though out of ner, 13 Met. (Mass.) 269. If it appear by court, concerning the facts in the cause, the record that the defendant appeared by until the appearance is withdrawn, or the attorney, he may disprove the authority of party revokes the attorney's authority, and such attorney. Hess v. Cole, 3 Zab. (N. J.) gives notice of the revocation; and until 116. Contra, Kent v. Ricards, 3 Md. Ch. the appearance is withdrawn, or the au- Decis. 392. See also Fowler v. Morrill, 8 thority revoked and the revočation noti. Texas, 153, where it is held that the au

9

VOL. II.

8

after being nonsuited in the first for want of formal proof;1 may sue a writ of error on the judgment;? may discontinue the suit; may restore an action after a nol. pro8.;4 may claim an appeal, and bind his client by a recognizance in his name for the prosecution of it;5 may submit the suit to arbitration ;6 may sue out an alias execution;' may receive livery of seisin of land taken by extent;8 may waive objections to evidence, and enter into stipulations for the admission of facts, or conduct of the trial ;9 and for release of bail ; 10 may waive the right of appeal, review, notice, or the like, and confess judgment.11 But he has no authority to execute any discharge of a debtor, but upon the actual payment of the full amount of the debt,12 (a) and that in money only ; 13 nor

1 Scott v. Elmendorf, 12 Johns. 315. 2 Grosvenor v. Danforth, 16 Mass. 74. 8 Gaillard v. Smart, 6 Cow. 385. 4 Reinhold v. Alberti, 1 Binn. 469. 6 Adams v. Robinson, 1 Pick. 462.

6 Somers v. Balabrega, 1 Dall. 164; Holker v. Parker, 7 Cranch, 436; Buckland v. Conway, 16 Mass. 396.

7 Cheever v. Merrick, 2 N. H. 376. 8 Pratt v. Putnam, 13 Mass. 363. 9 Alton v. Gilmanton, 2 N. H. 520. 10 Hughes v. Hollingsworth, 1 Murph. 146.

11 Pike v. Emerson, 5 N. H. 393; Talbott v. McGee, 4 Monr. 377 ; Union Bank of Georgetown v. Geary, 5 Pet. 99.

12 Savory v. Chapman, 8 Dowl. 656 ; Jackson v. Bartlett, 8 Johns. 361 ; Kellogg v. Gilbert, 10 Johns. 220 ; 5 Pet. 113; Gullet v. Lewis, 3 Stew. 23 ; Carter v. Talcott, 10 Verm. 471 ; Kirk v. Glover, 5 Stew. & Port. 34 ; Tankersly v. Anderson, 4 Desaus. 45 ; Simonton r. Barrell, 21 Wend. 362.

13 Com's v. Rose, 1 Desaus. 469 ; Treasurers v. McDowell, 1 Hill (S. C.), 184.

thority of an attorney at law undertaking to v. Roy, 69 N. Y. 96. So the attorney may represent a party to a suit, is prima facie release an attachment before judgment, and presumed, and cannot be questioned for the generally do all acts, in or out of court, first time on appeal or error; but where an necessary or incidental to the management act purports to have been done by agent or of the suit, which affect the remedy only. attorney, as the waiver of service of process, Moulton v. Bowker, 115 Mass. 36. But he and it does not appear that the agent or cannot waive other rights or bind his client attorney is an attorney at law, there is no by the exercise of powers affecting such presumption of authority, and the want of rights. Bloomington v. Heiland, 67 I11. 278. authority may be assigned for error by the The power of an attorney extends to opening party thus represented.

a default which he has taken (whether

propo (a) The attorney for a plaintiff has no erly or improperly), and vacating the judg. authority to direct a sheriff to inake a re- ment entirely, even though his client has turn of an execution as satisfied, when no instructed him to the contrary. *A payment has in fact been niade (Mande client has no right to interfere with the ville v. Reynolds, 68 N. Y. 528); nor to attorney in the due and orderly conduct satisfy a judgment without payment (Beers of the suit, and certainly cannot claim to v. Hendrickson, 45 N. Y. 665); nor to retain a judgment obtained and an execompromise or settle a suit (Barrett v. 3d cution issued by his attorney fraudu. Avenue R. R. Co., 45 N, Y. 628). But lently.' Read v. French, 28 N. Y. 293, he has authority to do everything which is and cases cited by court. Nightingale v. properly incidental to carrying on the suit Oregon C. R. R. Co., 2 Sawyer (C. Ct.) 338. to judgment and execution. Thus where, The attorney has no authority, by virtue as in New York, provision is made for the merely of his retainer to prosecute or deappointment of à receiver, as a supple- fend à suit, to release a claim of his client mental process in collecting a debt, the on a third person, for the purpose of making attorney has authority to take measures such person a competent witness for his for the appointment of a receiver. Ward client (Shores v. Caswell, 13 Met. (Mass.)

« PreviousContinue »