Carter v. Talcott

10 Vt. 471

• Court: Supreme Court of Vermont
• Decided: March 15, 1838
• Status: Published

Opinion

The opinion of the Court was delivered by

Phelps, J.

It is well settled that the writing in question will, if the plaintiff is bound by it, defeat this action. Conant v. Patterson et al. 7 Vt. R. 163.

But the authority of an attorney to bind his client, by such a proceeding, may well be doubted. The powers of an attorney were considered in the case of Penniman v. Patchin, 5 Vt. R. 346. We are satisfied with the view there taken of this subject. And, although we are disposed to concede to an attorney a certain latitude of discretion in the discharge of his duty, yet we cannot admit his authority to bind his client, by a contract, which necessarily involves a broach of trust, and is, in effect, a discharge of the client’s debt, without satisfaction.

If there were any doubt on this point, there is clearly none as to the powers of the attorney’s clerk. Wo are not aware that any authority appertains to the station of an attorney’s clerk. He may, like other clerks, derive an authority from actual employment, which will be commensurate with that employment. So far as he is entrusted with the management and control of the attorney’s business, he may bind his master. But an authority derived from this source must be proved. It does not appertain, of course, to the station of clerk. The case shows that Vail was employed, in this instance, to do the writing, make up the judgments, &c., but this confers no. authority to control the process, in the hands of an officer, or to assume the direction of a suit. Before even the attorney can be bound by this paper, it must be proved that Vail was empowered to control the business of the office, to give directions as to the execution of process, and to make contracts in behalf of clients. As nothing of this sort appears, the transaction was clearly unauthorized, and does not bind the plaintiff.

Judgment affjrmed.