Paddock v. Colby

18 Vt. 485

• Court: Supreme Court of Vermont
• Decided: March 15, 1846
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

The statute of limitations is no bar to the recovery of the plaintiff in this case. The letter of Colby and his remark to the officer, who served the writ, were a waiver of any defence under the statute. Although he does not admit an indebtedness, yet, if the fact of indebtedness be established, he expresses his willingness to settle and adjust the same.

The other question presented is one of more difficulty and importance, both as a practical question in its operation on attornies gen-generally and as to its application to the case under consideration. The plaintiff was not employed by the defendants, personally, to attend to the suit, for which the charges were made. There was no evidence presented to the auditor, that the defendants recognized his employment, or consented thereto, or acquiesced therein. His right to recover depends entirely on the authority of Judge Redfield, who was then at the bar, to employ him at the expense of the defendants.

In the first place, Judge Uedfield did not profess to have any such authority from the defendants; — “He presumed Capt. Colby would justify him in employing assistance, by reason of the cost,” — expecting, of course, that the act would be ratified by the defendants, and not claiming, that his engagement was binding on them, in consequence of his authority as an attorney in the cause. A party to a suit may entrust his cause to any counsel he thinks proper to employ; the person employed may manage the cause and charge him therefor according to the difficulty and importance of the case; the party may judge for himself, whether any assistance is wanted ; but the attorney cannot, without consulting his employer, employ any one to assist him, at the expense of his principal: It is not incident to the nature of his employment, that he should have this power, unless it can be fairly inferred, that such authority was given, from the facts in each particular case. Nothing is found by the auditor, from which such authority can be inferred in this case.

In the case of Briggs v. Georgia, 10 Vt. 68, relied on by the plaintiff, it was considered, that an attorney might combine the character of an agent generally and of an attorney to attend to the cause in court. But the power of an attorney at law, who only prosecutes, or defends, a suit, to employ assistant counsel was not recognized in that case. If it had been considered, that he had such power, the decision would have been, that Mr. Briggs was entitled to recover, at all events, on the employment by Mr. Allen. It was, however, expressly said, that no such authority existed in Mr. Allen, to employ counsel at the expense of the town, without the consent of their agent. The decision was, that it should have been left to the jury, to find whether Mr. Briggs was employed, or managed the suit, with the consent of the agent, expecting that the town of Georgia would remunerate him therefor. The authority of that case is against the right of the plaintiff to recover against the defendants on the facts found by the auditor. The services rendered by the plaintiff were of value to the defendants, and he ought to be compensated therefor; but we can find no authority to charge the defendants.

The judgment of the county court is reversed, and, on the alternative presented by the auditor, judgment must be rendered for the defendants.