Miller v. Edmonston

Dewey, J. At' the February term, 1844, of the Dubois Circuit Court, Miller sued TSdmonston on three sealed notes alleged to be lost, dated 26th, April, 1832, each for 133 dollars and 33-) cents, one payable in twelve months, one in eighteen months, and one in two years. The parties submitted the cause to the Court upon the following agreed case: The notes described in the declaration were executed by the defendant and one Morgan jointly and severally. On the 8th of June, 1836, Miller agreed by parol with Morgan, for a certain consideration, to give him further time on the notes until the 25th of January following. On the 2d of August, 1841, the notes having been previously placed by Miller in the hands of an attorney at law for collection, without any special instructions, the attorney took from Morgan his unsealed note for 626 dollars, payable to Miller one day after date, and gave up to Morgan the three notes described in the declaration to be cancelled, and they were cancelled accordingly. Subsequently (but when does not appear), Morgan, at the request of the attorney, confessed a judgment to Miller on the substituted note, which judgment is still unsatisfied. Morgan afterwards died insolvent. The Circuit Court rendered a judgment in favour of the defendant. We do not think the judgment can be sustained. The granting indulgence by parol, whether upon a valid or an invalid consideration, to one of two joint and several obligors, [292] ^°6S n°^ constitute a defence at law by the other obligor any part of the joint and several debt. El. P. Thornton, for the plaintiff J. Pitcher, E. S. Terry, and O. PL Smith, for the defendant. When a demand is placed in the hands of an attorney at ^aw f°r collection, without any special instructions, the authority conferred upon, and the duty assumed by him, is to use due diligence to collect the debt by suit or otherwise. He has no authority to compromise with the debtor, and cannot bind his principal by any arrangement short of an actual collection of the money. The transactions of the attorney as stated in the record, therefore, were nugatory, and had no binding effect upon his principal, the plaintiff. The notes which were improperly surrendered and cancelled, nevertheless remain in force. Nor does the judgment confessed on the new note alter the case. The taking the judgment was equally unauthorized as the surrender of the old notes, and cannot merge them. Piad it appeared that the plaintiff ratified the acts of his' attorney, the result would have been different; but it is not shown that he even had a knowledge of the doings of the attorney. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.