Phelps v. Hodge

The judges of the court delivered their opinions seriatim. Pjreston, J. The plaintiff having sued the defendant for upwards of $3000, the latter excepted, that the plaintiff having before sued for the same cause of action, he had paid JR. M. Carter, Esq., his attorney at law and duly authorized agent and attorney in fact, $369, in full satisfaction of the demand. He produces in evidence, a receipt of Mr. Carter, dated the 5th of April, 1848, headed with the title of the suit and the name of the court, for $369, in full satisfaction of the claim. It is signed by Carter, as attorney for the plaintiff. The exception of the defendant rests for its support, principally, on the testimony of Mr. Carter; and examining it minutely, it appears to me, he may have mistaken a special and limited power to compromise for a thousand dollars, for a general power. An agent may undoubtedly prove his agency; but when it is disputed, the testimony should leave no doubt or uncertainty upon the subject, for two reasons: 1. A man who disposes of another’s property, is extremely imprudent in resting his authority on his own testimony alone, when two or three lines in writing would have prevented all doubt and uncertainty. 2d. A debtor who takes a discharge from any other person than his creditor, is extremely imprudent in not having the authority in writing, when it could be obtained as easily as in the present case ; for the plaintiff and defendant lived in one parish, the attorney in another. In law, moreover, it is the duty of a party taking a discharge from an agent, to see that he has authority to give it; and his risk and loss, if it is given without authority. In the next place, our laws require that a compromise or transaction should be reduced to writing. Code, art. 3038. When made by an agent, I think the power should also be in writing. The agency is so much a part of the contract, that there should be as high, certain, and indisputable evidence of the agency as of the contract itself. The good order of society, and tranquillity of persons weary or fearful of litigation, requires that a power to compromise or refer a matter to arbitration, or to make a transaction on a matter in litigation, should be in writing. In all these cases, the parties in some degree renounce the laws of the land and the tribunals of the country established for their protection ; and their renunciation should rest upon the highest and most certain evidence. The lawgiver, in framing article 2966, intended this, in requiring the power to be express and special, when the thing to be done was in writing; though, undoubtedly, if the thing to be done might be done verbally, as to sell a movable, the power might be verbal; and our late Supreme Court constantly adhered to this principle. 3 N. S. 149. 17 L. R. 42. 13 L. R. 484. 8 L. R. 568. On the trial of the exception, the defendant having admitted parol proof, without objection as to the power to compromise, if that testimony left the power entirely free from doubt, I would yield to it. The testimony, however, induces me to think, there was not a clear and distinct understanding between Phelps and Carter, that the last might compromise for whatever he might think proper, [529] or indeed for less than a thousand dollars. And there is the more reason for disallowing a compromise, decreed without clear and satisfactory evidence^to establish it, because it is a contract supposed to be based upon a fair and equitable adjustment of the rights of the parties ; and neither, therefore, can be really injured by disallowing it as a peremptory exception, when there is a misunderstanding between them. I think the exception should be overruled, and the cause remanded to be tried on its merits. Rost, J. I concur in the foregoing opinion, delivered by Judge Preston, in this case. Eustis, C. J. I concur in the opinion of the district judge, as to the evidence in this cause, and therefore think the judgment should be affirmed. Slidell, J. I also concur in the opinion of the district judge. The judges of the court being equally divided in opinion in this case: it is thorefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.