S. H. Clark & Co. v. Kingsland

9 Miss. 248

• Court: Mississippi Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The material facts in this case are the following, to wit: At the May term, 1842, of the circuit court of Madison county, the appellants moved to have satisfaction entered of a judgment which the appellee had recovered against them for $1700, and to quash executions which had issued thereon subsequent to the November term, 1839. The court directed the satisfaction to be entered except as to $376, but refused to have it entered for that sum.

It seems that various payments had been made on the executions, until finally the sheriff struck a balance allowing all credits, and receipted for that balance in full on the execution. Amongst the several items of credit or payments on the execution, there is one which originated in this way: the defendants in the execution assigned to the attorney of record of the plaintiff, Kingsland, a judgment which they had obtained against one Foster, amounting to $376, the attorney taking such assignment as a payment and giving a receipt accordingly. There is no dispute about any other payment, and this is therefore the only one that need be noticed. This amount of $376, was credited as so much paid the attorney, and regarded by the sheriff in his final settlement as a payment.

Garrett, the attorney for Clark & Co. was introduced, and says that he was under acceptances for Clark & Co.’for money that he might collect, but he notwithstanding agreed to the assignment. When he came to settle with the sheriff, the amount of this judgment against Foster was included by mistake, and he receipted for it before the money was paid, taking the sheriff’s note, which, in fact, never has been paid. So that the amount of this judgment never came to the hands of Kings-land’s attorney. Garrett’s testimony was objected to on the ground of interest, but the objection was overruled.

The appellant’s counsel then offered to introduce witnesses to prove that it was the custom of attorneys in this State, to take full and complete control over business placed in their hands by foreign clients, and to exercise discretionary power, but the court refused to hear this testimony.

On this state of facts, the appellants have assigned for error, first, that Garrett’s testimony was improperly admitted; second, that the court erred in refusing to hear testimony as to the custom of attorneys in this State; and, third, that the court erred in not having satisfaction entered on the facts of the case, because when the assigned execution was satisfied, it was a satisfaction of so much of Kingland’s execution.

1. To the admissionof Garrett’s testimony, there could be no objection. He had no such interest as to exclude him; besides, it was addressed to the court, and in such cases, objections are not entitled to the same force as they would be if the testimony was addressed to a jury.

2. The second error is equally groundless. Such a custom as that which was attempted to be established, could not be permitted to affect the rights of clients. Any custom of the kind which the attorneys may have adopted, cannot be permitted to change the law. If their clients assent to it, then it binds them, but not otherwise.

3. The third error is equally untenable. It is the business of an attorney to collect the money on claims placed in his hands for collection; and his authority as an attorney extends no further. He has no power to take an assignment of a mere security, without some authority given for that purpose. It results, necessarily, that any receipt given by an attorney for such security, although it profess to be in satisfaction or payment, is not binding on his client, nor is it a legal discharge of so much of the debt. The attorney may in this manner make himself liable, and the client may rest content with that liability, if he chooses, but if he has obtained a judgment, he is not bound to relinquish it and accept other securities which his attorney may have agreed to take. This principle has been repeatedly recognized by this court in similar cases. Wenans & January v. Lindsey, 1 How. 577. Fitch v. Scott, 3 How. 314. The judgment of the court below must accordingly be affirmed.