Smyth v. Harvie

Mr. Justice WjüKer delivered the opinion of the Court. The plaintiffs in error retained defendants in error to institute a suit against McDonnell. A judgment was recovered, an execution was issued, real estate was sold, and purchased for four hundred dollars, and a certificate of purchase was taken in the names of plaintiffs in error. Afterwards McDonnell redeemed the land from this sale, paying into the hands of the sheriff, for the purpose, four hundred and forty dollars. On the 19th day of February, 1857, defendant Harvie took the certificate of purchase to the sheriff, obtained the money, and receipted for it in the name of the firm. It seems, that this money was never paid to plaintiffs in error, and this action was brought for its recovery, together with one hundred and twenty-eight dollars and fifty-four cents received at a different time. Defendant Tuley relies upon a dissolution of the partnership between himself and Harvie, previous to the receipt of this redemption money, as a defense to that portion of plaintiffs’ claim. This was allowed by the court below, in which a judgment was rendered for forty-four dollars and twenty-five cents, the balance of the $128.54, and interest, after deducting defendants’ fee for services in collecting the money. Whilst by the rules of the ancient common law, it was no part of an attorney’s duty to receive money on a judgment, yet in more modern times attorneys have become collecting agents, as well as lawyers. By uniform custom and practice, attorneys engage in, and attend to the collection of money as a part of their professional duty. Such is inseparable from the practice at the present day. It is not reasonable to suppose, that either party imagined, at the time of this retainer, that the duty of the defendants ceased when they obtained the judgment bn the plaintiffs’ claim. And the sum charged for professional services, no doubt was designed to cover the collection of the money, as well as the recovery of the judgment. In fact the evidence of the value of their services, refers to all they did in the case. They thus recognize their undertaking as collecting agents. Then, if their partnership embraced the business of collecting money, as well as the practice of^the law in other branches of the profession, it became a part of their duty to collect the money after judgment was recovered, unless otherwise agreed. If this was a partnership duty, it continued with each member, after the dissolution of the firm. Plaintiffs gave credit to the firm as it was then constituted, and they did not release themselves from their obligation, by its dissolution. For aught we know, the fact that Tuley was a partner, may have been the inducement to confide the business to the care of the firm. Even if a dissolution of the partnership could have released the members from liability for a failure to complete the business, it could only have been after notice of the dissolution. In the absence of such notice, plaintiffs had no option in determining whether they would continue the cause in the hands of the member who took charge of the business of the firm, or would place it in the hands of another attorney. It cannot be, that their business caii be transferred to others without their consent, so as to escape responsibility. They did not trust either member of the firm separately, but it was to both that the business was entrusted, and they have the right to look to both for its faithful performance. The court below erred in finding, that Tuley was released from liability by the dissolution of the partnership, and the judgment must be reversed, and the cause remanded. Judgment reversed.