ChalMees , J.,
delivered the opinion of .the court.
Adopting the statement of defendant, which seems to have; [587]*587been approved by tbe verdict of the jury,, the facts of this case ■ are as follows :
The note sued on w.as placed by the holder in the hands of " Reynolds, Bo.one & Reynolds, attorneys at law, for collection, by. suit or otherwise, in -I860. Shortly before the September • term, I860, of the circuit court of Tishomingo county, defend- , ant agreed with Col. E, A. Reynolds, the senior member of ' the law firm, that if suit should be held, up he would send. him $100., by the hands of W. L. Duncan, on or before the ■ first day of the term. The. sum, was delivered .by defendant ■ to Duncan, but never paid over by tlie latter to the attorneys,, as is now ascertained. ■. ■ , .
In December, 1860, defendant met Col. Reynolds in the-town of Corinth, and informed him that he then had $1,000 in the safe of Duncan, in said town, and that-he was ready to pay off the note. It does not appear whether anything was , then said-about the $100 previously transmitted or not. Rey- ■ nolds told defendant that he did not have the note with him,, nor did he know the amount of it, it being in his office at ■ Jacinto. Reynolds further said to defendant that Duncan, in. whose safe the money was deposited, was coming to Jacinto in', a few days, to make a settlement with him (Reynolds), and that-he (Reynolds) would then make out and .give to said Duncan, a statement of the amount due on said note, and that he (defendant) could then, pay the same to Duncan. Defendant and. Reynolds and Duncan all being ill company, it was then and there agreed that this arrangement should be carried out. .
On 26th March, 1861, in the town of Corinth, defendant paid to Duncan $662, in full of said note, taldng his receipt therefor, which receipt, specified on its face that it was paid and received. ‘ ‘ in full of balance of .note, and interest, executed by said .E. J. Wright to H. Mask, and now in , the hands of E. A. Reynolds.”
This receipt, signed by Duncan, was produced, and read on the trial, against the objections of plaintiff, who excepted thereto.
[588]*588Shortly after the payment to Duncan the civil war broke out, and. nothing more passed between the parties until its ■close. Upon the return of peace suit was instituted on the note, which was still in the hands of Reynolds.
Each of the members of the legal firm testified that he had never, received any money whatever on the note. Col. Reynolds stated that he had no recollection whatever of the circumstances deposed to by defendant, but that his memory as to transactions occurring before the war was very bad, and "that he would not say that defendant’s statement was untrue. He admitted that Duncan, was a personal friend of his, a gentleman of standing and of means, and that he would have been ■entirely .willing to have trusted him with any amount of money. The .court, having admitted defendant’s testimony and the receipt executed by Duncan, virtually charged the jury sthat if they believed the statement deposed to they must render a verdict for defendant. It refused instructions asked by plaintiff announcing a different principle. The jury found verdict for defendant, and plaintiff appealed.
The case is argued by defendant’s counsel upon the assumption that Duncan acted throughout as the agent of Reynolds.
Counsel for appellant do not concede this, but insist that, even if he was such agent, a payment to him was not binding on the .■owner of the note, because the attorney had no right to delegate that authority to receive payment which the client had not intrusted to him. It seems to us that Duncan was at least as much the agent of defendant as of Reynolds. As to the first $100 which defendant sent by him to the attorney, in order to induce him to hold up, he was much more so. 'We think as to that sum Reynolds’ agreement was to hold up the suit upon the reception of the money, and that the agent for its transmission was selected by the debtor. It is true that the suit was held, though the money was never received. ’.But no inference can be deduced from this, for the reason that .it was not to be paid until the first day of the ensuing term, and .consequently suit could not be brought to that term, and the [589]*589immediate breaking out of hostilities prevented its being done-thereafter.
The subsequent arrangement is stated to have been agreed to ■ by all parties. If Duncan was the trusted Mend of Reynolds, he was equally so of defendant. He had not only been previously selected by the latter as the bearer of the first $100, but he was also at that very time the custodian of his funds. If' he was the exclusive agent of Reynolds, as is insisted by conn--sel for appellee, it is a little singular that he was never intrusted with the note, nor was there even any agreement, that he should be. Defendant’s statement is that Duncan was to be furnished with “the amount due on the note,” meaning thereby a statement of the amount, and he was to ■ pay this amount to him. Considering that his money was. already in Duncan’s safe, the natural inference from this arrangement would seem to be that a statement of the amount. due on the note was to be given to Duncan, in order that when defendant withdrew his deposit a sufficient sum should be left to meet the note which Reynolds was thereafter to present. If Duncan was appointed Reynolds’ agent to collect the note. it is difficult to conceive why he was not intrusted with the paper, since it would seem that defendant might well object to. an arrangement, made in advance, by which he was to pay over his money to the agent of another, and leave his note still outstanding in that other’s hands.
But, if we concede that Duncan was the agent of the attor- • ney for the collection of the note, the question is presented whether an attorney at law, by virtue of the reception by him of a claim for collection, and in the absence of any special cir- ■ cumstances or instructions, can delegate to another the right-to receive payment thereof, which payment, when made to such other, shall bind the owner of the claim. It would seem upon principle that he cannot do so. His own authority is but a, delegated one, and according to the familiar maxim it cannot ■ be delegated.
r The relation of an attorney to his client is one of very high. [590]*590-trust and confidence, and his selection is dictated by a reliance in his skill and integrity, which the client may not feel towards .any other person. In the case at bar the owner of the note in question may have felt the most implicit confidence in the .business capacity and integrity of the attorneys in whose hands he had placed it, but have been wholly unwilling to extend the same to a person to him unknown. Very peremptory and .harsh remedies are provided against a lawyer who has collected ■and failed to pay over the money of his client. These the client could not invoke against the third person whom the lawyer has selected as his agent for making the collection.
An immense number of cases illustrating the reciprocal .rights and duties of clients and attorneys are collected and collated in 2 U. S. Dig. (1st series), by Abbott, p. 329, et seq.
Free access — add to your briefcase to read the full text and ask questions with AI
ChalMees , J.,
delivered the opinion of .the court.
Adopting the statement of defendant, which seems to have; [587]*587been approved by tbe verdict of the jury,, the facts of this case ■ are as follows :
The note sued on w.as placed by the holder in the hands of " Reynolds, Bo.one & Reynolds, attorneys at law, for collection, by. suit or otherwise, in -I860. Shortly before the September • term, I860, of the circuit court of Tishomingo county, defend- , ant agreed with Col. E, A. Reynolds, the senior member of ' the law firm, that if suit should be held, up he would send. him $100., by the hands of W. L. Duncan, on or before the ■ first day of the term. The. sum, was delivered .by defendant ■ to Duncan, but never paid over by tlie latter to the attorneys,, as is now ascertained. ■. ■ , .
In December, 1860, defendant met Col. Reynolds in the-town of Corinth, and informed him that he then had $1,000 in the safe of Duncan, in said town, and that-he was ready to pay off the note. It does not appear whether anything was , then said-about the $100 previously transmitted or not. Rey- ■ nolds told defendant that he did not have the note with him,, nor did he know the amount of it, it being in his office at ■ Jacinto. Reynolds further said to defendant that Duncan, in. whose safe the money was deposited, was coming to Jacinto in', a few days, to make a settlement with him (Reynolds), and that-he (Reynolds) would then make out and .give to said Duncan, a statement of the amount due on said note, and that he (defendant) could then, pay the same to Duncan. Defendant and. Reynolds and Duncan all being ill company, it was then and there agreed that this arrangement should be carried out. .
On 26th March, 1861, in the town of Corinth, defendant paid to Duncan $662, in full of said note, taldng his receipt therefor, which receipt, specified on its face that it was paid and received. ‘ ‘ in full of balance of .note, and interest, executed by said .E. J. Wright to H. Mask, and now in , the hands of E. A. Reynolds.”
This receipt, signed by Duncan, was produced, and read on the trial, against the objections of plaintiff, who excepted thereto.
[588]*588Shortly after the payment to Duncan the civil war broke out, and. nothing more passed between the parties until its ■close. Upon the return of peace suit was instituted on the note, which was still in the hands of Reynolds.
Each of the members of the legal firm testified that he had never, received any money whatever on the note. Col. Reynolds stated that he had no recollection whatever of the circumstances deposed to by defendant, but that his memory as to transactions occurring before the war was very bad, and "that he would not say that defendant’s statement was untrue. He admitted that Duncan, was a personal friend of his, a gentleman of standing and of means, and that he would have been ■entirely .willing to have trusted him with any amount of money. The .court, having admitted defendant’s testimony and the receipt executed by Duncan, virtually charged the jury sthat if they believed the statement deposed to they must render a verdict for defendant. It refused instructions asked by plaintiff announcing a different principle. The jury found verdict for defendant, and plaintiff appealed.
The case is argued by defendant’s counsel upon the assumption that Duncan acted throughout as the agent of Reynolds.
Counsel for appellant do not concede this, but insist that, even if he was such agent, a payment to him was not binding on the .■owner of the note, because the attorney had no right to delegate that authority to receive payment which the client had not intrusted to him. It seems to us that Duncan was at least as much the agent of defendant as of Reynolds. As to the first $100 which defendant sent by him to the attorney, in order to induce him to hold up, he was much more so. 'We think as to that sum Reynolds’ agreement was to hold up the suit upon the reception of the money, and that the agent for its transmission was selected by the debtor. It is true that the suit was held, though the money was never received. ’.But no inference can be deduced from this, for the reason that .it was not to be paid until the first day of the ensuing term, and .consequently suit could not be brought to that term, and the [589]*589immediate breaking out of hostilities prevented its being done-thereafter.
The subsequent arrangement is stated to have been agreed to ■ by all parties. If Duncan was the trusted Mend of Reynolds, he was equally so of defendant. He had not only been previously selected by the latter as the bearer of the first $100, but he was also at that very time the custodian of his funds. If' he was the exclusive agent of Reynolds, as is insisted by conn--sel for appellee, it is a little singular that he was never intrusted with the note, nor was there even any agreement, that he should be. Defendant’s statement is that Duncan was to be furnished with “the amount due on the note,” meaning thereby a statement of the amount, and he was to ■ pay this amount to him. Considering that his money was. already in Duncan’s safe, the natural inference from this arrangement would seem to be that a statement of the amount. due on the note was to be given to Duncan, in order that when defendant withdrew his deposit a sufficient sum should be left to meet the note which Reynolds was thereafter to present. If Duncan was appointed Reynolds’ agent to collect the note. it is difficult to conceive why he was not intrusted with the paper, since it would seem that defendant might well object to. an arrangement, made in advance, by which he was to pay over his money to the agent of another, and leave his note still outstanding in that other’s hands.
But, if we concede that Duncan was the agent of the attor- • ney for the collection of the note, the question is presented whether an attorney at law, by virtue of the reception by him of a claim for collection, and in the absence of any special cir- ■ cumstances or instructions, can delegate to another the right-to receive payment thereof, which payment, when made to such other, shall bind the owner of the claim. It would seem upon principle that he cannot do so. His own authority is but a, delegated one, and according to the familiar maxim it cannot ■ be delegated.
r The relation of an attorney to his client is one of very high. [590]*590-trust and confidence, and his selection is dictated by a reliance in his skill and integrity, which the client may not feel towards .any other person. In the case at bar the owner of the note in question may have felt the most implicit confidence in the .business capacity and integrity of the attorneys in whose hands he had placed it, but have been wholly unwilling to extend the same to a person to him unknown. Very peremptory and .harsh remedies are provided against a lawyer who has collected ■and failed to pay over the money of his client. These the client could not invoke against the third person whom the lawyer has selected as his agent for making the collection.
An immense number of cases illustrating the reciprocal .rights and duties of clients and attorneys are collected and collated in 2 U. S. Dig. (1st series), by Abbott, p. 329, et seq.
A somewhat extended examination of them has disclosed ■only three cases directly adjudicating the question under discussion, and of these one affirms and two deny the right of the attorney to bind his client by the reception by an agent appointed by the former of the money due to the latter.
In McEwen v. Mazyck & Bell, 3 Rich. (S. C.), 120, the defendant confessed judgment and immediately paid over the mone3''to the clerk of the court, Thos. P. Evans.
Josiah J. Evans was the attorney for the judgment creditors. The supreme court of South Carolina held that it was competent to prove, in a subsequent proceeding between plaintiff .and defendant, that Thomas P. Evans was the general agent of Josiah J. Evans, in Kershaw district, to receive money for the said Josiah J. Evans in his professional business, and that .the payment to Thomas P. Evans was binding on the plaintiff. The court seem to rest their conclusion upon the idea that an attorney at law occupies a higher position, with broader powers, than an attorney in fact. The latter, they say, acts under a .private employment, while the former exercises a quasi public authority.
It is argued that persons engaged in similar public employments, such as factors, bankers, auctioneers, and others, whose [591]*591business it is to receive money for their employers, discharge ■this duty through clerks and agents, whose acts areas binding ■on their principals as if performed by the factors or bankers in person.
We confess that this reasoning does not commend itself to •our judgment.
We think that ther$ is but little similarity between the «employments suggested and that of an attorney at law. The delegation of authority to agents and clerks by parties engaged in such employments is usual, customary, and indeed indispensable.
This is well understood by those dealing with them, and the acts of such agents and clerks will be binding on the principals ■under the principle announced in Story on Ag., § 14, in which the learned author declares that a power of delegation will be implied “where it is indispensable in order to accomplish the end ; or it is the ordinary custom of trade; or it is understood by the parties to be the mode in which the particular business might or could be done; or where, from the nature of the agency itself, a sub-agent is necessary.”
We think that the true rule, so far as attorneys at law are concerned, is announced in Johnson v. Cunningham, 1 Ala. (N. S.), 258, in which, after announcing the doctrine laid down by Story, supra, the court proceeded to say : “ Taking the law to be as we have stated, it follows that an attorney at law, in virtue of his ordinary powers, cannot delegate his authority to another so as to raise a privity between such third person and his principal, or to confer on him, as to the principal, 1ns own rights, duties, and obligations ; and if there was anything in the nature of the employment from which a delegation of authority might be implied, or to show that it was contemplated by the parties, it should have been shown in the proof.”
In Kellogg & Co. v. Norris, 5 Eng. (Ark.), 18, it was distinctly affirmed that where a note had been sent for collection [592]*592to one lawyer, and by Mm transmitted to a second one, payment to the second would not discharge the note.
We are not prepared to concur altogether in tMs conclusion. It not being shown that the mater of the note had notice that, the second lawyer held it as the agent of the first, we think he might well have paid his note to the party in whose possession he found it. But in the case at bar the defendant knew all the circumstances under which his payment was made, and. he elected to make it without the surrender of the note, and. to a party whom he knew not to have possession of it.
We think that the testimony showing payment to Duncan should have been excluded ; that the instructions which were given for defendant, and which were excepted to by plaintiff, should have been refused, and that those asked by plaintiff' should have been granted.
The case is reversed and remanded, and new trial awarded..