Yerger v. Aiken

66 Tenn. 539

• Court: Tennessee Supreme Court
• Decided: April 15, 1874
• Status: Published

Opinions

Nicholson, C. J.,

delivered the opinion of the court.

This is an attachment bill, filed by Yerger and White, and Humes and Scott, to recover judgments against E. E. C. Aiken for services rendered by them as solicitors in the Chancery and Supreme Courts, in the case of Gillespie v. Wofford, determined in the Supreme Court in 1866, and to have their judgments satisfied by the. sale of tbe real estate recovered in the litigation referred to, and on which an attachment was levied.

No question is made as to the right of Yerger and White to recover, but the claim of Humes and Scott is resisted upon the ground that their services were rendered without having been employed in the case. It is conceded that they were not engaged to attend to the case of Mrs. Aiken in person, or directly, but the proof shows that they were employed by Col. L. C. Haynes, a relation of Mrs. Aiken and her legal adviser, but that he had no authority from her to employ them, nor did he notify her that he had so employed them. But it is in proof by White, who is conceded to have been one of her solicitors, that in 1860, which was soon after the suit was commenced, he informed her by letter that Humes and Scott were acting as solicitors in the case. She replied that she wanted no others than her original counsel, but gave White no instructions to notify Humes and Scott of her wishes; nor did White mention the matter to them, nor did she ever notify them. But they continued to prosecute the case diligently in the Chancery Court, where it was decided against Mrs. Aiken, and after an appeal in the Supreme Court, Humes and Scott being the sureties on the appeal bond. In the Supreme Court the case was gained for her, whereby Mrs. Aiken recovered a tract of land in Shelby county, her interest in which was valued at §6,666. Humes and Scott attended to the case until its termination in 1866, under the belief that they were regularly employed, and without any notice from Mrs. Aiken that .she did not desire their services.

Upon these facts Chancellor Morgan was of opinion that Humes and Scott were entitled to recover for their services, and decreed accordingly.

The proof shows that Mrs. Aiken was apprized of the fact that Humes and Scott were attending to her eases as her solicitors as early as 1860, soon after the suit was instituted. Although she expressed dissatisfaction as to the number of the lawyers, yet she remained silent, and took no step to communicate her dissattisfaction to them, but received the benefit of their services until 1866, when the cause yra's finally terminated and gained, without repudiating them as her solicitors. y

Under such circumstances oj>Silence .and long acquiescence, after knowledge ,+hat a party is honestly acting as agent, when it Tifas the duty of the principal to speak within a reasonable time after such knowledge, it is a sound principle that such conduct amounts to a conclusive presumption of the ratification of an unauthorized act:,'Story on Agency, sec. 255.

Upon this gro/und we are of opinion the Chancellor’s decree was correct, a'nd affirm it.