Moore v. Murrell

Hemingway, J. Can it be said, as matter of law, that when an attorney receives notes, which he after-wards reduces to judgment, with directions “ to do with them the best that he can,” he is authorized to accept as satisfaction articles of property ? The court below charged, in effect, that the law should be so held; and if this was erroneous, the judgment must be reversed. An attorney is authorized by ordinary employment to prosecute a claim to judgment and satisfaction,'but he can take in satisfaction nothing but money, and of it no less than the amount due. If the authority exists in the case stated, it is not because it is among the usual powers of an attorney, but because it was specially conferred in the particular case by the directions given. What does the direction “ do the best you can ” with a claim mean ? Does it confer the general authority to dispose of the claim as the attorney thinks proper? Or is it an injunction to vigilance and activity in discharging the ordinary duty of an attorney? Or is its meaning variable, depending upon circumstances and the connection in which it is found ? The last seems to us all the correct view of the matter. If a doubt is expressed as to the possibility of making a collection, and the response is, “do the best you can,” it could hardly be taken to intend more "than to enjoin an effort to collect, notwithstanding the poor prospect of success ; if, in connection with such doubt, an intention is expressed that property might be obtained in settlement, it might well be intended to authorize such settlement. The direction, standing alone, would not usually disclose the full intention of the client, and to discover such intention resort to the circumstances and connection wottld be necessary. If the language used, when read in such connection, can be fairly said to show an intention on part of the client to confer such authority, it should be said to exist; but unless such intention be thus fairly deducible, the authority should be denied. The direction, standing alone, means no more than to enjoin an active effort to collect in the ordinary line of an attorney’s duty. What it meant in this case is a question of fact for a jury, to be determined as we have indicated; and not a question of law for the court. We conclude that the court erred in its charge upon this point. Objection is made to another part of the court’s charge ; but we are of opinion that while it may not be an accurate statement of the law, it is substantially correct in this case. We think that the charge was not abstract, but applicable to the case as made by the evidence. Whether the attorney was employed by an agent of the plaintiff, and whether the plaintiff received a letter from defendant, notifying him of the settlement with the attorney, which called for an answer, are questions of fact for a jury; and it is only proper for us to say that there was sufficient evidence as to each point to warrant an instruction applicable to it. For the error indicated the judgment will be reversed, and the cause remanded.