Southern Star Lightning Rod Co. v. Duvall

Beeck'ley, Justice. 1. Did McCord pay the fi.fa., or did he purchase it? He was not a party to it, nor did he have in hand any fund belonging to the defendant. The latter requested him to advance the money and pay off the fi. fa., and this he promised todo; but did he do it? Did he not change his mind, and conclude to purchase the fi. fa. and keep it open against the defendant, so that he might, if necessary, enforce it for his reimbursement ? It matters not how late he underwent this change of purpose, if he did in fact undergo it, and if he acted accordingly in his dealings with the plaintiff’s attorney, at [265] the time of parting with his money. Grant that so acting would involve a breach of faith, he had incurred only the obligation which a bare promise imposes, not that which attaches to a binding contract, no consideration for the promise having passed. To violate even a naked promise deliberately made, is a moral delinquency more or less reprehensible; but the law does not charge itself with the enforcement of naked promises — leaving them to the voluntary decisions of private conscience. Moreover, it is not every deviation from the terms of a promise that amounts to a breach of it. The spirit of a promise is often as well kept by departing somewhat from the letter, as by the most literal performance. Regard is to be bad to the benefit which was in contemplation when the promise was made, and if there is reasonable certainty that the benefit will equally follow from a free as from a close method of performance, either method may, in many instances, be adopted without the slightest infidelity to moral principle. On strictly ethical grounds, there is undoubtedly great danger in varying this or that detail in the mode of performance, and anything like a habitual practice of doing so would be pernicious; but a just recognition and observance of the correct general rule will not oblige us to treat the rule as one without exceptions. There are exceptions ; and the explanation of McCord’s conduct in the present case lies in the fact that he deemed himself at liberty to make this one of the number. Whether he judged rightly or not, there are unmistakable indications that he so judged. The evidence demonstrates that in aim and purpose he was true, throughout, to the object for which he undertook to advance the money and pay off tha fi. fa. That object was to relieve the defendant from the pressure which the plaintiff’s attorney was exerting upon the defendant for the money. It was in consequence of this pressure that the defendant applied to McCord to befriend him. No less conclusive is the evidence that McCord, after making the promise, and whilst engaged in the act of complying with it, embraced the [266] opinion that the object could be as well subserved by purchasing the fi. fa. as by paying it off. To this he was moved by the suggestion of the witness Turner, a suggestion that was accepted and acted upon in a way to leave no vestige of uncertainty that McCord and the attorney both intended that the fi. fa. should not be extinguished, but that it should remain open in the hands of McCord, as his property, to be enforced by him at his pleasure. No doubt McCord intended to indulge upon the fi. fa. to the same extent as he would have indulged upon an account for a loan of the money, if his original purpose of making a loan had been carried out. He supposed he was giving his friend all the substantial fruits of the promised accommodation, and at the same time securing himself for his outlay somewhat better than was thought of in the beginning. Most probably he had not the slightest doubt of his moral right to take a transfer of the fi. fa., or of the attorney’s legal authority to execute it. But the fact of transfer is indisputable, and that fact is controlling. In Harbeck vs. Vanderbilt, 20 N. Y., 395, the court said : “ It is equally clear, that if the money be paid, not by one who is a party to the judgment and liable upon it, but by some third person, the judgment will be extinguished or not, according to the intention of the party paying. The taking of an assignment, whether valid or void, affords under all circumstances, unequivocal evidence of an intention not to satisfy the judgment.” To intend a payment, strictly and properly, of any instrument, and to take a transfer of it at the same time, would be in the highest degree absurd. What could McCord possibly have wanted with the fi. fa. if it was a paid and extinct paper % The proper evidence of payment would have been a receipt from the attorney; and the attorney should not only have entered the satisfaction on the fi. fa. and returned thQfi.fa. to the clerk’s office from whence it issued, but, under the rules of court, he would have been subject to a fine if he failed to report the collection for entry on the execution docket, etc. See Rules of Superior [267] Court, “Attorneys.” Nothing whatever was done on the line of payment, but every step taken was on the line of purchase; the last of which steps was the entry of satisfaction, signed by McCord, the transferee. This entry is without date, but there is no evidence that it was made before the actual payment of the fi. fa. by the defendant to McCord : the presumption is that it was made then, for the import of the entry is that the satisfaction was made to McCord, he being the person who acknowledges it. Though the payment made by McCord to the attorney is called by the witnesses a payment of the fi. fa., it was really a payment fot the fi. fa. on a contract of sale and purchase, which contract was reduced to writing, signed, and delivered with the fi. fa. itself. The misapplication of terms in the parol evidence cannot alter the facts, nor vary their legal significance or effect. 63 Ga., 134 to 139; 62 Ib., 82, 83. Having thus seen that the true relation of McCord to they?, fa. was that of purchaser and transferee, and that there was no exercise by the attorney of his power, to collect the fi.fa. and extinguish it, the effect of the transaction turns upon the naked legal question whether the attorney could bind his client by the assignment for full value, the evidence being positive that he did not pay over the money, and that the client did not in any way ratify the assignment. An unauthorized sale of the client’s property would not divest his title. 8 Ga., 421; 12 Ib., 337. And a payment by the debtor to the assignee, would be no satisfaction or discharge. Wilson vs. Wadleigh, 36 Me., 496. 2. The case last cited, as well as numerous others, among them Campbell’s Appeal, 29 Penn. St., 401, are in point on the general proposition, that to assign an execution is not within the scope of the general authority of the plaintiff’s attorney. Our Code, however, deals with the question and settles it for us in these terms: “ The transfer of a judgment or execution by the attorney of record shall be good to pass the title thereto as against every person except the plaintiff or his assignee without notice. The ratification [268] by the plaintiff shall estop him also from denying the transfer. The receiving of the money shall be such a ratification.” Code, §3598. There can be no rational construction of this language which does not hold that whoever deals with the attorney or with his assignee, takes the risk of the client’s failure or refusal to ratify. That risk, in this case, was upon McCord in making the purchase, and upon Duvall, the defendant, in afterwards making payment to McCord. And as the plaintiff has never ratified, the verdict of the jury is contrary to law and evidence, and the superior court erred in not granting a new trial. The hardship of the particular case is no reason for melting down the law. Por the sake of fixedness and uniformity, law must be treated as a solid, not as a fluid. It must have, and always retain, a certain degree of hardness, to keep its outlines firm and constant. "Water changes shape with every vessel into which it is poured; and a liquid law would vary with the mental -conformation of judges, and ■become a synonym for vagueness and instability. Judgment reversed. "Warner, Chief Justice, concurred, but furnished no written opinion.