Fidelity & Deposit Co. v. Burden

• Decision Date: 04 February 1929
• Docket Number: No. 130,131.,130
• Citation: 30 F.2d 610
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. BURDEN (two cases).
• Court: U.S. Court of Appeals — Second Circuit

30 F.2d 610 (1929)

FIDELITY & DEPOSIT CO. OF MARYLAND v. BURDEN (two cases).

Nos. 130, 131.

Circuit Court of Appeals, Second Circuit.

February 4, 1929.

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Charles S. Aronstam, of New York City, for plaintiff in error.

Thomas E. White, of New York City, for defendant in error.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The obligations of Burden are to be ascertained from the terms of his applications. They were for supersedeas bonds, and it may be and indeed is argued that any such bonds, though to secure all the defendants, who appealed, would meet the terms of his applications. But such is an unreasonable interpretation of the acts of the parties. Burden was under no obligation to the other defendants, and had no reason that is apparent to furnish indemnity for them. He testified that all the other defendants, whose interests were hostile to his, were represented by separate attorneys, and he said that a representative of these others, and not of himself, employed Thompson & Robertson, who were suing to recover the value of their legal services. That he should intentionally secure against execution parties having interests adverse to himself is unlikely, and that he secured them negligently is not a result called for by the terms of his application.

It is contended that the words "supersedeas bond in U. S. Dist. Ct. So. Dist. of N. Y., Burden et al. Plffs. in error, * * *" meant a bond to secure all the plaintiffs in error. In no part of the applications were the names of the other plaintiffs in error given, and still less was there anything to indicate that the applications were for bonds securing any party but Burden. The words "et al." were merely descriptive of the action in which the bond was to be given.

It may be that, if Burden had himself accepted bonds securing the other persons, there would have been a practical construction by the parties of their relations which would have required us to hold that the applications were for bonds to secure all the defendants who took an appeal. But it is quite a different matter to say that the acceptance of the bonds by Burden's attorney could have this effect. While an attorney has wide powers in the conduct of suits, even to the extent of consenting to the submission of a pending cause to arbitration (Holker v. Parker, 7 Cranch, 436, 3 L. Ed. 396; Alexandria Canal Co. v. Swann, 5 How. 83, 12 L. Ed. 60; Judson v. United States C. C. A. 120 F. 637; Gorham v. Gale, 7 Cow. N. Y. 739, 17 Am. Dec. 549; Williams v. Tracey, 95 Pa. 308), yet he has no implied authority to execute a contract of indemnity or to sign an appeal bond on behalf of his client (Luce v. Foster, 42 Neb. 818, 60 N. W. 1027; White v. Davidson, 8 Md. 169, 63 Am. Dec. 699; Ex parte Holbrook, 5 Cow. N. Y. 35; Schofield v. Felt, 10 Colo. 146, 14 P. 128; Clark v. Courser, 29 N. H. 170).

If he has no authority implicit in the relation of attorney and client to execute such agreements, how can authority to bind his client to pay the debt of a codefendant be implied from an employment to secure his own client against an execution? The ample authority implied from the relation of attorney and client relates to the conduct of suits and to means which are proper to the end in view. A supersedeas bond securing other defendants is not such a means, for it could benefit Burden in no way that is apparent. Inasmuch as his attorney had no implied power to accept the bonds as a fulfillment of the applications which Burden had executed, so far as they secured other parties, we cannot regard the acceptance of these bonds as adding anything to the liability which proper interpretation of the applications imposed upon Burden. We do not regard the situation as like the case where A offers to pay $200 for a horse and his agent accepts a white horse in fulfillment of the bargain when A intended to buy a black horse. A "supersedeas bond" has no such general meaning in the circumstances as the word "horse" in the illustration. The supersedeas bonds applied for were bonds for the benefit of Burden, and not...