Mattingly v. Linthicum

4 Ky. Op. 582, 1871 Ky. LEXIS 266

• Court: Court of Appeals of Kentucky
• Decided: December 20, 1871
• Status: Published

Opinion

Opinion op the- Court by

Judge Lindsay :

The facts in this case do not warrant the conclusion that Linthicum received the notes deposited with him by Mattingly in the capacity of attorney. We are satisfied that he received them as collaterals to hold as indemnity on account of his suretyship to Willit. There is nothing in the record conducing to show that in the matter of their collection and in the application of their proceeds to the payment of Willit’s note he failed in any particular to act with reasonable prudence, or in the utmost good faith. He is, therefore, not responsible for the amounts he was not able to collect.

Johnson, for appellant. Muir & Wicldiffe, for appellee.

The commissioner’s report, however, shows that there remained in his hands December, 1867, the sum of $56.66. In his exceptions he complains that the commissioner made errors in his calculations prejudicial to him, and that the basis of some of these calculations were erroneous. He fails, however, to point out specifically these errors. The court below did not pass upon these exceptions, and this court has failed to discover the errors alleged. We are of opinion that judgment should have been rendered against him for the amount mentioned.

His services as attorney, although not specially employed to sue, were worth far more to appellant than the amount of this balance, but Linthicum insists that by express contract he was to receive nothing for such services, except the attorney’s fee allowed against the parties sued.

Judgment reversed, and the cause remanded for proceedings consistent with this opinion.