Dupre v. Splane

16 La. 51

• Court: Supreme Court of Louisiana
• Decided: September 15, 1840
• Status: Published

Opinion

Morphy, J.,

delivered the opinion of the court.

Plaintiff seeks to recover the balance of a note, placed for collection in the hands of defendant, as his attorney at law; the estate of the drawer of (his note being at that time unable to pay its whole amount, and defendant entertaining some doubts as to its ultimate solvency, he made an arrangement with the agent of the heirs, in September, 1831; he received three hundred dollars in part payment, and took for the balance the note of one Levi Foster, who at that time was possessed of a large amount of property and was generally considered as good ; some time after, however, he died and his estate was found to be insolvent; proceedings had been instituted against said Foster, and every exertion made by defendant to collect the amount of the note, which has never been paid.

It is clear that a power to an agent or attorney at law, to collect a debt does not authorize him to make a novation or to enter into a compromise. Louisiana Code, article 2966. But it is equally clear that when, in the honest exercise of hisjudgment, an agent takes upon himself to make an unauthorized settlement, believing it advantageous to his principal, and apprises him of it, the latter is bound to express his disapprobation within a reasonable time; if he continues to correspond with his agent on the same business, without objecting to the settlement made for him, he must be considered as approving it; had the agent reserved some means of securing himself in the event of his arrangement being rejected, he would have been induced to neglect them. A principal must on such occasions make his election; he cannot hold-his agent liable for his unauthorized acts, and at the same time seek to avail himself of those very acts, in case they turn out to be advantageous. In the present instance, the letters which passed between the parties up to the end of 1833, have left on our minds the impression that from the beginning plaintiff had been apprised of the settlement made by his agent; he received the three hundred dollars collect-led in consequence of it, and far from repudiating it as unauthorized, we find him in one of his letters urging defendant to collect the balance, which he had been told by the latter was to be paid as soon as Foster’s crop of sugar would be sold ; we concur entirely in the view taken of this case by the judge of the inferior court.

It is, therefore, ordered, that the judgment appealed from be affirmed, with costs.