W. W. Kimball Co. v. Payne

CoRN, Justice. This was a suit in replevin. Some time prior to its institution the plaintiff in error by a suit in replevin had recovered from Gilligan and Taliaferro a certain piano. [444] One Louis J. Palmer was the attorney for plaintiff in error in that suit. Upon the recovery of the property Palmer kept it for a time at his own house, and upon changing his residence, placed it in the custody of Payne for safe keeping. This action for the recovery of the property was brought against Payne and his wife, who defend upon the ground that they have a lien upon it for storage charges. The court below found the amount of the charges for storage, and rendered judgment that the defendants were entitled to possession of the property until such charges should be paid. The plaintiff in error ..contends that Palmer had no authority to make any contract whatever in regard to the property which would bind his client, upon the general principle that the authority of an attorney, employed to prosecute a suit, is limited to the prosecution and conduct of the suit itself, and that he has no power or authority to bind his principal by any collateral contracts with reference to the property, or other subject-matter of the action. The precise terms of Palmer’s -employment are not shown by- any letter or other writing. But it appears generally that, the company being a nonresident of the State, he was written to at them instance to bring suit to recover the piano, that he recovered it in an action of replevin, and had it in his possession as their agent. That while it was in his custody he stored it with the defendant Payne. The powers of an attorney are to be determined in a large measure from the purpose and object of his employment; he has an implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his powers cease. (3 Am. & Eng. Enc. Law (2d ed.), 345). The Massachusetts court say, “An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only and not the cause of action.” [445] Moulton v. Bowker, 115 Mass., 40. Yery clearly an attorney employed to recover specific personal property by suit, would not be authorized to accept other property of a different character in satisfaction, or, after a recovery, to sell it or exchange it. But in such a case, the client being a nonresident, it would be going very far, to say that an attorney would not have authority to receive, for his client, property so recovered. And, having rightfully received it, it would become his duty to provide for its proper care and custody and to incur, on behalf of his principal, such expenses as might be necessary for that purpose. The attorney and agent of the company who employed Palmer testified that he had instructed him that immediately upon its recovery he should ship it to his company, and that upon being notified that he had it in his possession, he sent him the money necessary to pay the expense of shipment. But there is nothing in the evidence tending to show that Payne had any knowledge of this, and the tendency of this testimony is to show that the company not only recognized Palmer as their attorney to take the necessary legal steps in the suit, but also as their agent to take possession of and handle the property. The situation, then, seems to have been that Payne found Palmer in the possession of the piano, he also knew the circumstances under which he obtained it, and that he held it as the representative of the company. Payne dealt with him as the custodian of the property and such in fact he was, and, by the circumstances of his possession, he was so treated and held out by the company. Payne had the right to act upon these appearances, and he was not chargeable with any private instructions to the agent of which he had no notice. Mechem on Agency, Secs. 707, 708. But independent of the foregoing considerations, the lien of the defendants is claimed by virtue of Section 2846, Bev. Stats., 1899, which provides that any warehouseman or other person who shall safely keep or store any [446] personal property at the request of the owner or person Icm-full/y in possession thereof, shall have a lien upon all such personal property for his reasonable charges for storage, etc. Now, the bill of exceptions -shows that upon the trial in the lower court, it was stipulated by the parties to the action that Palmer was in the lawful possession of the property at the time he delivered it to the defendant. This stipulation would seem to have been made with direct reference to the statute, and we see no escape from the conclusion that it brings the case fully and clearly within its provisions. ' By its express terms, then, and upon a conceded fact, Payne had a lien upon the piano for his charges if any were shown to be due by the evidence. Palmer testified that it was expressly agreed between Payne and himself that there was to be no charge for storage, but that Payne was anxious to have the instrument in his house, so that he and his family, being musicians, might have the use of it. Payne, upon the other hand, testified that he told Palmer he could put it in his house, but that he had no use for it. That Palmer did so, and said he would make it all right with him for taking care of it; that nobody in the house could play, and that it was never used or opened while it was there. The District Court passed upon this conflict of evidence, and this court will not review its decision. The judgment must be affirmed. Affirmed. PotteR, C. J., and Knight, J., concur.