McKelvey v. Tucker

55 F. 719, 1893 U.S. App. LEXIS 2604

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: May 18, 1893
• Docket: No. 3,019
• Status: Published

Opinion

CONE, District Judge,

(after staring the facts as aboye.) Although a great mass of evidence is presented, the facts, upon which liability rests, are few and simple. Tucker, Calder & Co. employed Noyes & Noyes to collect a claim of $1,400 against J. K. Johnson & Co., of Grand Forks, Dak. Noyes & Noyes proposed to levy an attachment if Tucker, Calder & Co. would induce the First National Bank of Grand Forks to furnish the necessary bonds. Thereupon Tucker & Co., through, their bank at Utica, N. Y., requested the First National Bank at Grand Forks, to furnish bondsmen in the suit of Tucker v. Johnson. For particulars the bank at Grand Forks was referred to Noyes & Noyes. The Utica hank agreed to guaranty the bondsmen from loss to the extent of $3,300. Upon the receipt of this request and guaranty the plaintiff, who was president of the Grand Forks bank, signed the bonds presented by Noyes & Noyes, and because of this act he suffered the loss which he now asks the defendants to make good.

In contemplation of law it is as if the defendants had requested the plaintiff to sign bond:.; in Tucker v. Johnson which Noyes & Noyes would prepare and had agreed to pay all loss- to the extent, at least, of $3,300— -which he should sustain by reason of such signing. It would seem that the action should be based upon the defendants' promise direct to the plaintiff, and not upon the theory that Noyes & Noyes, ae cttoiiieys, had authority to bind their clients by requesting McKelvey to sign the bonds. In this view it is quite immaterial whether the attorneys acted within the scope ol their authority or not. Assume that they had no authority to give indemnity bonds to the sheriff, that Uie defendants Dover intended to give such bonds, and that the acts of Noyes & Noyes in this regard were entirely unauthorized by them. The deiemlants are still liable on their promise. The difficulty with iheir contention is that it assumes Shat the plaintiff knew what was passing in the minds of the defendants. Co far as the record discloses the first intimation that the plaintiff had of the matter wag when he received ¡he dispatch of November 28, 1883, requesting him to provide bondsmen in Tucker v. Johnson. Ho did not know whether Tucker v. Johnson was an attachment suit, a foreclosure suit, or a patent suit. lie did not know whether the bond required was one on attachment or appeal, as indemnity or as security for costs, lie knew simply tills: That there was a suit pending between Tucker and Johnson; that a bond of some kind was needed, and that Noyes & Noyes, the plaintiff’s attorneys, would inform him as to the particulars. If the telegram had said, “Please provide bondsmen for attachment in Tucker v. Johnson,” the principle contended for by defendants might apply. But the request was not limited in any way, except that the bondsmen were to be in the suit of Tucker v. Johnson. In all other respects it was a broad request to sign whatever bonds Noyes &,, Noyes presented. The plaintiff was fully justified in assuming, after this general reference to Noyes & Noyes, that they knew their clients’ wishes, and were acting in conformity to their, clients’ instructions. Having been directed by the defendants to Noyes <& Noyes he could do nothing else than sign the bonds which they assured him were required in the suit of Tucker v. Johnson.

It seems to the court that the defendants do not meet the issue jby the assertion that they are not liable upon this unqualified promise, because 'the bonds which the ’plaintiff signed for their benefit were not the bonds which they expected him to sign, and not the bonds which they thought he had signed. They could have limited their liability to a specific bond. This they did not do. It was conceded on the argument that the judgment against McKelvey in the suit brought against him by Titus cannot be attacked in this action. In other words, it is not disputed that Hc-Kelvey’s property to the extent of nearly $4,000 has been taken from him by due process of law for the sole and only reason that he became bondsman for the defendants. It was purely a matter of accommodation on the part of the plaintiff. He acted without a particle of interest in the matter and in entire good faith. He received the defendants’ request to sign the bonds, and on their promise to hold him harmless, he signed, and he lost. The question is whether he or the defendants shall suffer this loss. To this question it seems to the court that but one answer is possible. The defendants must reimburse the plaintiff for the injury which he has sustained solely on their account. They induced him to sign the bonds, and promised to pay the loss if he did sign. That promise is now invoked and muse be enforced.

There must be a judgment for the plaintiff.