Opinion
07-26-1876
JOHNSON v. GIBBONS.
Gilmore and D. Trigg, for the appellant. J. A, Buchanan and R. M. Page, for the appellee.
1. In 1860 attorneys at law receive two notes, and give a receipt, which says:--Received for collection, and after describing them says:--On the above notes we are to bring suit, and prosecute them to judgment, and to have a fee of five dollars in each case. Though the last clause of the receipt may be construed to relieve them from the obligation to collect, and from the corresponding compensation or commission for collecting, it cannot be construed to deny to them the authority to collect, or to limit them to the function of prosecuting the claims to judgment.
2. Judgments having been recovered in the cases and executions issued, which were stayed, the debtor in April 1862 pays to the attorneys $2,600 in part of these debts, the payment being in confederate money, neither the attorneys nor the debtor having any notice that the creditor was unwilling to receive confederate money, and the attorneys write immediately to the creditor that they have this money for him; and he, holding that the attorneys had no authority to collect the money, does not reply to their letter; and neither attorneys nor debtor hear of any objection to their receipt of the money until 1874. The creditor is concluded by his failure to give his attornies notice of his objection to their receiving the money.
In January 1874, H. C. Gibbons gave notice to James M. Johnson that he would move the county court of Washington county to quash two executions, and also two writs of venditioni exponas, which had been issued from the clerk's office of said county court in the name of said Johnson against said Gibbons and others. By consent the cases were removed to the circuit court of Washington county, and came on to be heard in that court in February 1874. The material facts are as follows:
In 1860, Bekem & Campbell, attorneys at law, practising in the county of Washington, received from Johnson two notes, and gave him a receipt therefor, in which they say:--Received of James M. Johnson for collection a note drawn by A. F. Bradley and payable to H. G. Gibbons for $500, dated, & c.; another note drawn by same, payable to same, dated at the same time, and payable four months after date for $2,000, at, & c. On the above notes we are to bring suit, and prosecute them to judgment, and to have a fee of five dollars in each case.
Bekem & Campbell instituted suits on these notes in the county court of Washington, and recovered judgments against Bradley and Gibbons, and executions were issued upon them, and forthcoming bonds taken and forfeited; and executions were issued on the forfeited forthcoming bonds, returnable to May 1861. On these executions stay bonds were executed in July 1861 by Gibbons, with William King Heiskell, the sheriff, as his surety. About the same time, Gibbons, who had been the previous sheriff, put into the hands of Heiskell tax and other tickets, amounting to $3,197.94, which Heiskell was to collect and account for in paying the two executions of Johnson against Gibbons, & c. And on the 5th of April 1862 Heiskell paid to Bekem & Campbell $2,600 on the said two executions. This payment was in confederate money.
Johnson's statement, which was received as evidence, is--That after the executions had gone to the officer's hands, he had been pressing both Gibbons and Heiskell for the money. In 1861, about June of that year, when pressing Heiskell for the money, Heiskell said he had property levied on, I think he said cattle, and unless I would attend the sale and make the property bring something like it would have brought in the fall before, I could not get my money; stating that some law of that kind had been passed. I told him I would take nothing but coin. Heiskell then said, then you cannot get your money. I replied, I will wait until I can get such money. * * * * In the spring of the year 1862 I received a letter from Mr. Bekem, in which he stated he had $2,000 in confederate money for me, and that I could get the rest of my money in that currency whenever I wanted it. To which letter I made no reply, as Mr. Bekem had no authority to collect this debt for me.
It was agreed that Heiskell was dead. Gibbons testified, that he had no notice that Mr. Bekem was not authorized to collect these debts. And it was further agreed, that the original executions went into the hands of Gibbons, who was then deputy sheriff of Washington county, and who was fined $50 at March court 1861 for the failure to return the said executions upon the motion of Johnson; in which motion he was represented by Bekem & Campbell as his attorneys.
The cases were by consent heard together; and the court rendered a judgment by which the executions and the writs of venditioni exponas were quashed. And it was adjudged that the $2,600 paid to Bekem & Campbell should be applied to satisfy the judgment on the note for $2,000, and the balance should be entered as a credit on the other jugment. And Johnson thereupon applied to a judge of this court for a writ of error and supersedeas; which was awarded.
Gilmore and D. Trigg, for the appellant.
J. A, Buchanan and R. M. Page, for the appellee.
OPINION
ANDERSON, J.
The court is of opinion that there is no error in the judgment. Johnson was promptly informed by his attorney, Bekem, of the payment made to him on the 5th of April 1862, in confederate money, upon his executions against Gibbons. Johnson admits that he made no reply to the letter of Mr. Bekem informing him of the payment; for which he assigns the very insufficient reason, that he had no authority to collect the debt for him. Mr. Bekem was an attorney at law, engaged in the practice of his profession in connection with Mr. Campbell, in the firm name of Bekem & Campbell, when they receipted to Mr. Johnson for the notes upon which they obtained the judgments for which the executions in question were issued. In their receipt they say: " Received of James M. Johnson, for collection, a note" --which they describe--also " another note" --which they describe--and conclude, " on the above notes we are to bring suits, and prosecute them to judgment, and to have a fee of $5 in each case," & c. This last clause of the receipt seems to indicate that the undertaking of the attorneys was to prosecute the suits to judgment, for which their compensation is fixed; but it can hardly be construed as a revocation of the first clause, which authorizes them to collect, or of the general authority of an attorney to collect. Though it may be construed to relieve them from the obligation to collect, and from the corresponding compensation or commission for collecting, which it is probable was intended, it cannot be construed, we think, to deny to them the authority to collect, or to limit them to the function of prosecuting the claims to judgment. And this view is confirmed by the fact, that a motion was prosecuted by the same attorneys against the deputy sheriff, to a judgment for a fine of fifty dollars, for failing to return the executions.
If Johnson was really of opinion that Bekem had no authority to collect the money, he had reason to believe, from what has been narrated, and from his having actually received the money, that he considered he had authority to collect it; and so far from the fact of his belief that he had not, furnishing a reason or excuse for not replying to his letter, it made it the more incumbent on him to have promptly replied, and to have informed him that he did not acknowledge his authority to collect the money, and that he did not approve of his receiving confederate money, and would not receive it from him. Mr. Justice Greer, of the supreme court of the United States, in Law v. Crop, 1 Black's R. 539, says, speaking for the whole court: " When informed by his agent of what he had done, if the principal did not choose to affirm the act, it was his duty to give immediate information of his repudiation. He cannot, by holding his peace and apparent acquiescence have the benefit of the contract (in this case payment) if it should turn out to be profitable, and retain a right to repudiate it if otherwise. The principal must, therefore, when informed, reject within a reasonable time, or be deemed to adopt by acquiescence."
It does not appear that Bekem had ever received an intimation that his client did not wish him to collect the executions, or that he would not receive confederate money in payment. It was contended by the learned counsel for the plaintiff in error that Heiskell, the sheriff, was aware of it. If he was, it is not presumable that he would have communicated it to the attorney to whom he offered to pay it; nor can it be presumed that he communicated it to the debtor Gibbons, who swears that he had no notice that Mr. Bekem was not authorized to collect; and if Bekem had been thus restricted in the general powers of an attorney, the debtor's payment to him would not be invalidated unless he had notice of the restriction.
But was Heiskell, through whom the payment was made to Bekem, aware that Johnson was unwilling to receive confederate money at the time he made the payment in question? It seems that about a year before, he informed Johnson that he had levied his executions upon cattle, and that unless he would attend the sale and bid on them, and make them bring about as much as they would have brought the fall before, under a law then in force, he could not make his money, when Johnson declined, and said he would take nothing but gold or coin for his debt. At that time confederate money was not in circulation, and he could not have made the declaration with reference to it. And will Heiskill be held to have had notice from that casual conversation, twelve months afterwards, when confederate money was freely paid out and received by the banks and in all business transactions, and had become the almost exclusive circulating medium of the country, that Johnson was unwilling to receive payment of his debt in that currency, which it is known to the court that many persons then regarded as equal to coin as a medium of exchange? We think not. And after silently acquiescing in the payment made to his attorney, without an intimation to the defendant in error, to the contrary, so far as this record shows, from the 5th of April 1862, when it was made, until the 19th of January 1874, when the executions in question were sued out, it would not be equitable nor reasonable, that he should be allowed to repudiate it now. Upon the whole, the court is of opinion to affirm the judgment of the circuit court.
JUDGMENT AFFIRMED.