Monson v. Hawley

Eismain, J. The plaintiffs are entitled to the relief prayed for, provided the defendant’s attorney had power to release the lien acquired by the attachment on taking other security as stated in the finding. This is admitted. The question therefore is as to the power of an attorney who, under a general retainer, is employed to commence and prosecute to final judgment and execution, and to collect, a claim for damages arising on a breach of a contract for the delivery of property. The act of the attorney in this instance was done in perfect good faith, and at the time appeared to be for the benefit of the attaching creditor, as the property substituted for the stock first attached was at that time of more value than the stock itself. The plaintiffs also are in the’condition of bona fide purchasers of the stock supposed to be released from the attachment, having paid a full consideration for its value at the time they purchased it, which embraced the installments, forty per cent, which had been paid in by Stevens after the release of the stock, without notice of any outstanding lien or claim upon it. Under such circumstances their equitable claim to the stock is very strong. Still, if the attorney had no legal power to [54] release the attachment, perhaps the equitable claim of the defendant would be equally strong, and having a better legal right to the stock, he would be permitted to retain it. What then is the power of an attorney over property attached by him on a claim which he is employed to collect ? Was the act of the attorney here fairly within the scope of his authority ? He might in the first instance have attached the property which he attempted to substitute for that which he did attach, and, if the defendant in that suit had requested it, it would have been his duty to do so, because his only object was to get security for the claim, and in doing this he was bound to consult the wishes and convenience of the debtor so far as was consistent with his object. But if he had power to direct with regard to the attachment of property in the first instance, why should he not have the power of substitution at the request of the defendant ? It has been held that he has power to waive a default in certain cases, even contrary to his client’s instructions. He has power to direct the sheriff as to the manner of enforcing an execution. He may discontinue a suit, release bail, and in Maine it has been held that he may modify an attachment and discharge a lien created by it. Anonymous, 1 Wend., 108. Williams v. Eldridge, 1 Hill, 249. Corning v. Southland, 3 Hill, 552. Gaillard v. Smart, 6 Cowen, 385. Gorham v. Gale, 7 id., 739. Averill v. Williams, 4 Denio, 295. Jenney v. Delesdernier, 20 Maine, 183. The result from these and other authorities which might be referred to seems to be, that the attorney by virtue of his general retainer has power over the means necessary to secure and collect a claim intrusted to him. And this is necessary for the security of third persons who act upon the faith of such authority. Perhaps no better illustration of the injustice to which such persons might be subjected can be given than that which is furnished by the facts found in this case. The plaintiffs have all advanced their money for the purchase of property which, by the act of the attorney after the attachment, was made to appear free from any lien or claim upon it, and if the defendant could now hold it, they must lose it. If it be said that the defendant must lose to the same extent if the [55] plaintiffs do not, the answer is that it is more equitable that the loss should fall upon one whose agent has caused it, than upon those who have been in no manner instrumental, either directly or indirectly, in producing it. We advise the superior court to grant the relief prayed for. In this opinion the other judges concurred.