Goodman v. Walker

STONE, J. This case has heretofore been before this court, (21 Ala. 647,) and it was then settled, that each count in the declaration contains a good cause of action. That opinion must stand as the settled law of this case. Wyatt’s Adm’r v. Steele, 26 Ala. 639. The jury, by their verdict, affirmed that “they believed all the evidence;” and the inquiry arises, does the evidence prove all the material averments in either of the counts ? — 495 — The injury complained of in the first count is charged to have resulted from the neglect and unskillfulness of the attorneys, in not haying the “writ of attachment, affidavit and declaration, prepared, and drawn up and filed, and made out according to the laws of said State, and rules of the said court.” The gravamen of the second count is, that the action became abortive, and of no avail, by the dismission of the levy of the attachment, and the discharge and release of its liens. For the common accountabilities of life, all men, even these of the lowest degree of legal sanity, are presumed to know the law, and are held responsible for its violations-Every member of the legal profession admits the necessity of this rule, and yet we all know that the greatest legal minds have fallen into error. Law is certainly the most comprehensive of all the sciences; its mastery and practice the most intricate of all the professions. Change and progress, if not improvement, are observable at every epoch of its history. If, under these circumstances, members of the legal profession were held accountable for the consequences of each act which may be pronounced an error by the courts of the country, no one, I apprehend, would be found rash enough to incur such fearful risks. On the other hand, it surely can not be successfully maintained, that lawyers are a privileged class, not responsible for any, even the grossest want of skill. I hold, that they, like all other professional men and artizans, impliedly stipulate that they will bring to the service of their clients ordinary and reasonable skill and diligence; and, if they violate this implied stipulation, they are accountable to their clients for all injury traceable to such want of skill and diligence. — Chitty on Contracts, (8th Amer. from 4th London ed.) 481; ib. 482; Dearborn v. Dearborn, 15 Mass. 316. Some law-writers, and some adjudged cases, are guilty of inaccuracy in the employment of the phrase, “gross negligence.” Our own court fell into this error, in the case of Evans v. Watrous, 2 Por. 205. It is there said, that an attorney is not liable, “unless he has been guilty of gross negligence.” In the same paragraph it is asserted, that — 496 — be “is bound to use reasonable care and skilland the meaning attributed by the writer of that opinion to the expression “gross negligence,” is the want or absence of ‘■‘■reasonable, care and skill.” Thus explained, that opinion defines the true measure of an. attorney’s duty and liability. — Waugh v. Shunk, 8 Har. Penn. State Rep. 180; Denew v. Daverell, 3 Camp. 451; Shields v. Blackbourn, 1 H. Bla. 158; Duncan v. Blondell, 3 Starkie’s Rep. 6. In Godefrey v. Dalton, 6 Bing. 460, cited in Chitty on Contracts, 483-4, it was decided, that an attorney is liable for the consequences of ignorance, or non-observance, of the rules of practice of the court he practices in; for the want of care in the preparation of the cause for trial; while, on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction. — Chitty on Con. 482-3-4-5; Kemp v. Burt, 4 Barn. & Ad. 424 ; Reese v. Righy, 4 Barn. & Ald. 201; Varman v. Martin, 15 Pick. 440; Smedes v. Elmendorf, 3 John. 185; Dearborn v. Dearborn, 15 Mass. 316; Pitt v. Yalden, 4 Burr. 2060; Ireson v. Pearman, 3 Barn. & Or. 799. This statement of the principle is well sustained both by reason and authority. I lay down the rule, then, for the determination of this case, as follows: If the law governingthe bringing of this suit was well and clearly defined, both in the text-books, and in our own decisions; and if the rule had existed, and been published, long enough to justify the belief that it was known to the profession, then a disregard of such rule by an attorney-at-law renders him accountable for the losses caused by such negligence or want of skill; negligence, if knowing the rule, be disregarded it; want of skill, if he was ignorant of the rule. One of the earliest and best defined rules of pleading, in actions at law, is, that the suit must be brought in the name of the party in whom the legal interest is vested.— 1 Chitty’s PL 2. When a simple contract is in terms made with an agent personally, he may sue thereon. — Ib. 8-9 ; Buffum v. Chadwick, 8 Mass. 103. This general principle is laid down in the elementary writers on pleading. Buffum v. Chadwick was decided in 1811. In — 497 — 1839, Mr. Story, in his work on Agency, § 394, laid down the rule, that where “a promissory note is given to an agent as such, for the benefit of his principal, and the promise is to pay the agent eo nomine, the agout may sue in his own name.” In Alabama, as early as 1820, and at the second term which this court held, the same principle was distinctly and directly enunciated. — Newbold’s Ex’r v. Wilson, Minor’s Rep. 12. In 1837, the principle was again asserted in Ewing v. Modlock, 5 Por. 82; and in January, 1843, the question came again directly before this court, with the same result. — Castleberry v. Fennell, 4 Ala. 642. The same rule is settled, in the same way, in other States, and in the later decisions of this court. — Chitty on Con. (8th American, from 4th London edition,) p. 211-12, note 1; Bancroft v. Paine, 15 Ala. 834; and see authorities on the briefs of counsel; also, Harp v. Osgood, 2 Hill, (New York,) 216. I have examined the authorities referred to on the briefs of counsel, and many others, and have found no case of simple contract where a written promise was made to any one eo nomine, although described as agent, for another natural person, in which the court has held the action improperly brought in the name of the payee. True, the law never implies a promise in favor of an agent.— Branch Bank Montgomery v. Syduor, 7 Ala. 308 ; Gunn v. Cantine, 10 Johns. 387. Nor can an agent maintain an action on a parol promise to pay him a debt due to his principal by judgment. — Nabors v. Shipley, 15 Ala. 293. There is another class of cases, where a promise is made to an agent, treasurer, or trustee of an incorporated company, for the benefit of the company. In such cases it is generally held, that the promise is in fact made to the company, and that it is the proper party plaintiff. — Alston v. Heartman, 2 Ala. 699; Hazard v. Planters & Merchants’ Bank, 4 Ala. 299; Gilmore v. Pope, 5 Mass. 491; Taunton & South Boston Turnpike v. Whiting, 10 Mass. 326; Master, Wardens & Co. v. Davis, 1 Bos. & Pul. 98; also, Sargent v. Morris, 3 Barn. & Ald. 277. But these do not conflict with the rule above stated. — 498 — The right, then, to sue in this case in the name of Mercer, at the time the suit was commenced, March, 1844, was so well and. clearly defined, both in the text-books, and in our own decisions ¿"'and the rule had existed and been published so long, that I feel bound to pronounce the attorney guilty of gross negligence or want of skill, who would institute a suit on this contract in the name of one who had no right to sue. Had Mrs. "Walker no right to sue in her own name ? Evidently she had the right to sue in her own name, as executrix, averring the demand to be assets of the estate of her testator. — Harbin v. Levi, 6 Ala. 401; Dunham v. Gault, 12 Ala. 105. If the note had been made payable to her, describing her as executrix &c., she would have had the right to sue in her own name; the words executrix &e. being regarded as descriptio personae. — Tate v. Shackelford, 24 Ala. 510; also, Buffum v. Chadwick, supra; Castleberry v. Fennell, supra; Tomkies v. Reynolds, 17 Ala. 115, and authorities cited. I am of the opinion, also, that the suit might have been maintained in her name individually. In such case, the suit is not technically on the note; but the declaration, following the writ, should contain the common counts; and the note, being proven, may be given in evidence, and will establish the fact of indebtedness, in the nature of an account stated. — 1 Chitty’s Pl. 7-8; Martin v. Hind, 2 Cowp. 437; Carnegie v. Waugh, 2 Dowl. & Ry. 277; Garrett v. Handley, 4 Barn. & Cress. 664; Taintor v. Prendergast, 3 Hill, (N. Y.) 72; Piggott v. Thompson, 3 Bos. & Pul. 147, and note a; Co. of Feltmakers v. Davis, 1 Bos. & Pul. 101, note e. But this is a question of some doubt. If the action was well considered, was there any authority for filing the declaration in a different name ? Mr. Chitty says : “The declaration must pursue the writ, in regard to the Christian and sur-names of the parties.”— 1 Chitty’s Pl. 279. This court, at the January term, 1840, laid down the same rule. — Elliott v. Smith, 1 Ala. 74. This rule, then, had existed, and been defined, both in the text-books and our own decisions, for a period of time, before the commencement of this suit, long enough to — 499 — justify the belief tbat it was known to tbe profession. The disregard of so plain a rule betrayed a palpable want of reasonable skill, or of reasonable diligence. — See, also, Chapman v. Spence, 22 Ala. 588. It is thus made clear, that there was equal fault in the pleader, whether he erred in bringing the suit in the name of Mrs. "Walker; or, if the suit was well brought, in filing the declaration in the name of Mercer; thus producing a departure, by changing the parties. The argument by which he would escape from the supposed error in the writ, leaves him without excuse for the fault in the declaration. I3ut it is contended, that the presiding judge, when leave to amend was asked, replied that he would grant the leave, but there was nothing to amend by. The inference is drawn from this, that an amendment would have availed nothing, and hence was not pressed. The answer to this is, that a palpable departure in pleading, amounting to crassa negligentia, or lata culpa, had placed the record in this condition. I hold, then, that it was a bold practice to pursue a doubtful course, when a clear one was open to the pleader. It betrayed gross negligence, or want of skill, to change the plaintiff, and declare in a name different from that named in the writ. The necessity, actual or supposed, for the discharge of the levies, was caused by the palpable fault of the pleader; and he is responsible for the consequences. I have thus far considered this case as if it were res integra. Such is not its condition. When this case was before in this court, (21 Ala. 647,) the court, speaking of the first count in the declaration, the substance of which is stated in the opening of this opinion, used this language: “It may not -be the strict professional duty of an attorney to prepare or supervise the preparation of an affidavit for an attachment, or a writ of attachment; but, if he does undertake to do so, and does it so negligently or unskillfully that his client in the progress of the cause suffers an injury, by reason of such want of care and skill, the attorney is liable to an action. That it is the attorney’s duty to prepare a declaration admits of no question; and here — 500 — the allegation of neglect and want of skill, embraces as well the declaration, as the affidavit and writ. This made it sufficient, if the other words did not.” If this extract establishes any thing, it is the proposition, that if the attorney frames the declaration “so negligently, or unskillfully, that his client in the progress of the cause suffers injury by reason of such want of care and skill, the attorney is liable to an action.” I have shown above that, in framing the declaration, the attorney was wanting in care or skill. This, then, brings the case directly within the former adjudication, and I feel bound to observe and carry out that decision as the law of this case. — Matthew, Finley & Co. v. Sands & Co., at the present term. Several points were raised on the admissibilty of evidence ; all of which, I think, were correctly ruled in the court below. The receipt for the collection of the note, was a necessary fact to establish the relation of client and attorney; the relation in which the alleged default was committed. So, the record in the case of "Walker v. Bussey & Lawson, was admissible, to prove the final determination of that suit. The agreement of Mr. Goodman, dated Doc. 2d, 1850, was admissible evidence against him; and that agreement justified the admission of the letters of Mr. Brock. If Mr. Mitchell desired to relieve himself personally from the influence of this testimony, he should have asked the court to limit its operation by a proper charge. — Palmer v. Severance, 9 Ala. 751; Falkner v. Leith, 15 Ala. 9. The proof, attempted to be made by the witness Baugh, that he had consulted a distinguished attorney; and also, that the arrangement entered into was, under all the circumstances, the best in his judgment that could be made, was properly rejected. It sought to establish no fact, and was in itself not a question of science, to justify its proof by experts. — Ohitty on Contracts, 484. Champerty, in the stipulation of commissions, can not avail the attorneys in this case. That portion of the contract being void, the attorneys having performed services, could have maintained an action for reasonable compensation. — Holloway v. Lowe, 1 Ala. 246; approved — 501 — in Elliott v. McClelland, 17 Ala. 206. Being entitled to the benefits of the retainer, it would be monstrous to relieve them from its responsibilities. The dissolution of the partnership of Mitchell & Goodman, did not relieve Mr. Mitchell from the liabilities he assumed, when his firm undertook the collection of the note. His partner had bound him to the employment of reasonable skill and diligence in the conduct of the suit, and from that responsibility he could not relieve himself, without the consent and act of Mrs. Walker. Moreover, the default was committed while the partnership was in existence. It might be fui’ther added, that as there was no proof that Mrs. Walker had notice of the dissolution, she having traded with the firm as partners, was not chargeable with the consequences of the dissolution. Collyer on Partnership, (by Perkins,) § 120, and notes. There is nothing in the argument, based on the fact of the receipt of a part of the money by the plaintiff below. She was entitled to as much of her demand as the attorneys, by the employment of ordinary skill and diligence, could have collected. The receipt of part by her, when more was due, was neither an accord and satisfaction, nor an estoppel. There is no error in the record, and the judgment is affirmed. The connection of the other members of the court with this case, devolves on me the individual responsibility of this decision. The delicacy and importance of the questions presented, have prompted me to submit this opinion to several distinguished members of the profession; gentlemen who have had no connection with the controversy, and no previous knowledge of its existence. They all concur in the correctness of the principles above expressed. February 8,1857. — I have carefully re-surveyed the grounds of this opinion. The result of my deliberations is a thorough conviction that, in declaring in a name different from that in whose favour the writ was issued, the appellants have rendered themselves liable to the plaintiff. I therefore adhere to my former opinion; basing my conclusion mainly on this ground.