Seawell v. Parsons Lumber Co.

AeleN, J. Tbe distinction between tbe negligence of counsel, while engaged in tbe performance of a professional duty, and the negligence of tbe party, is clearly marked, and tbe uniform rule with us is tbat the negligence of tbe first will not be attributed to tbe client if he, himself, is in no fault; and this is true without regard to the solvency or insolvency of counsel. Schiele v. Ins. Co., 171 N. C., 426, and cases there cited. It is equally well settled tbat if tbe attorney is acting outside of bis employment as attorney, and is engaged in tbe performance of an act *325 wbicli the client can perform, and when it is his duty to do so, that then the attorney, in the performance of this act, is the mere agent of the client, and his negligence is the negligence of the client. Edwards v. Henderson, 109 N. C., 83; Neal v. Land Co., 112 N. C., 841; Norton v. McLaurin, 125 N. C., 185. It is also established that the employment of counsel does not excuse the client from proper attention to his case (Pepper v. Clegg, 132 N. C., 316), and that the test of the negligence of the client or party is whether he has acted as a man of ordinary prudence while engaged in transacting important business. Norton v. McLaurin, 125 N. C., 190; Allen v. McPherson, 168 N. C., 437. In the application of these principles it has been held that a nonresident attorney who is not entitled to practice in the courts of this State is the agent of the client, and that the client will not be relieved under the statute because of his neglect; but that the client who has employed a reputable attorney who is entitled to practice in the county where the action is pending, who is himself not in default, will be relieved. Manning v. R. R., 122 N. C., 824; Bank v. Palmer, 153 N. C., 503; Gaylord v. Berry, 169 N. C., 734. "We must then inquire in what capacity Mr. Stevens was employed, whether as attorney or agent; we must see if he was negligent, and, if he was, whether the defendant acted as a prudent man attending to important interests. If he was the attorney .of the defendant and negligent, or if he was his agent and not negligent, the defendant is entitled to relief if not negligent himself. The negligence attributed to counsel is his failure to employ local counsel in Eobeson County, where the action was pending, and relying upon counsel, who were not employed, to furnish him a copy of the complaint when filed. Mr. Stevens was the general counsel of the defendant, and, as a licensed attorney of this State, was entitled to practice in the county of Eobeson. The defendant,. immediately after the service of the summons, put Mr. Stevens in charge of the‘case, and he undertook its management, suggesting, however, the employment of local counsel to assist him, to which the defendant assented. Mr. Stevens immediately communicated with McIntyre, Lawrence & Proctor, a firm of competent, reputable, and experienced attorneys residing at Lumberton and regularly practicing in the courts of Eobeson County, advising them of the institution of the action; that defendants desired to employ counsel to assist him in the defense, inquiring whether *326 any complaint bad been filed in tbe action, and, if so, requesting them to furnish him with a copy, and asking whether they were in position to appear for and represent the defendants; and McIntyre, Lawrence & Proctor replied that no complaint had been filed; that they would send him a copy when filed; that they were in position to represent defendants if desired to do so-, and would be glad to represent them. This correspondence, read in connection with the relationship existing between attorneys, would make a contract of employment of local counsel beyond question, but. for the interpolation in the letter of Messrs. McIntyre, Lawrence & Proctor of the words, “if desired to do so,” and when the correspondence is considered as a whole, it is not unreasonable for Mr. Stevens to conclude that they had accepted employment. He wrote the attorneys at Lumberton that the defendants desired to employ local counsel to assist him in the action, and inquired if they were in a position to represent the defendants. This, among reputable attorneys, would bind him to employ these particular attorneys if they would accept employment. They replied that they would be- glad to appear for the defendants, and promised unconditionally to furnish a copy of the complaint when filed. We have, then, what is equivalent to an offer of employment, with at least a qualified acceptance and a direct promise to perform an act which could only arise out of the employment, and Mr. Stevens might well conclude that the words, “if desired to do so,” were inserted to avoid the appearance of too great anxiety to be employed, and his Honor finds as a fact that Mr. Stevens honestly understood that counsel at Lumberton had agreed to represent the defendant, and that he, in good faith, told his client that they had been employed, and that they would forward to him a copy of the complaint as soon as it was filed. • If, therefore, any default can be attributed to him, it consists in putting the wrong construction on a letter capable of two constructions, and in advising his client erroneously as to the meaning of the letter, and in this he was acting strictly in the line of professional duty and not merely as agent. ' The remaining question is as to the defendant himself. Has he acted as a man of ordinary prudence while attending to important business interests ? Immediately after the service of summons he went to see his general .counsel and employed him to take charge of the case, which counsel agreed to do. He followed, the suggestion of his counsel and directed him to employ local counsel to assist in the trial of the action. Soon there *327 after be made inquiry of bis counsel and was told tbat local counsel bad been employed, tbat tbe complaint bad not been filed, tbat as soon as it was filed local counsel would fumisb bim a copy, and tbat there was nothing that tbe defendant could do until tbe complaint was filed, and tbat be would advise tbe defendant when it was necessary for bim to do anything with respect to the action. The defendant honestly believed tbat local counsel bad been employed, tbat tbe complaint had not been filed, and he relied implicitly upon the statement of his counsel; but tbe defendant did not let the matter rest here, but frequently and repeatedly inquired of his counsel if anything had been done in the action, and was advised each time that nothing further had been done, that the complaint had not been filed, that he would be furnished a copy as soon as it was filed, and that he would then advise the defendant. Tbe findings of tbe judge, wbicb are conclusive upon us, establish the good faith both of the defendant and his counsel, and it would seem tbat tbe defendant bas done all tbat would be required of a man of ordinary prudence. “Tbe usual office and duty of an attorney at law is tbe representation of parties litigant in courts of justice, and it is for this purpose that he is licensed under the authority of the State.” This office and duty “embraces tbe preparation of pleadings and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients. Tbe relation of attorney and client 'is that of master and servant in a limited and dignified sense, and involves the highest personal trust and confidence. Tbe attorney, by bis obligation, is bound to discharge bis duties to bis client with tbe strictest fidelity, and he is answerable to the summary jurisdiction of the court for dereliction of duty. An attorney is, however, more than a mere agent or servant of his client. He is also an officer of the court.” 2 E. C. L., 938. Surely, with such a relationship of trust and confidence, established by law and recognized and sanctioned by the courts, a hearing will not be denied to a client because he bas intrusted to bis attorney, an officer of tbe court, tbe duty of writing a letter to local counsel, seeking to employ them, instead of writing the letter himself, and for relying upon the repeated assurances of his counsel tbat be bad employed tbe counsel; and unless this is negligence there is no blame attributable to tbe defendant. "We are, therefore, of opinion tbat there is no error in setting aside tbe judgment and allowing the defendant to answer. This will give the opportunity to both parties to have a hearing upon the merits *328 when both parties are represented, and can do no substantial injury to the plaintiff, as his Honor required the defendant to execute a bond larger than the judgment recovered, conditioned to pay any sum recovered in the action, and the plaintiff, if entitled to recover damages, will be compensated for the delay by the payment of interest, which the jury may award as damages. Affirmed.