Cox v. Sullivan
| Decision Date | 31 July 1849 |
| Docket Number | N0. 26. |
| Citation | 7 Ga. 144 |
| Parties | James Cox, plaintiff, in error. vs. Thomas C. Sullivan, defendant in error. |
| Court | Georgia Supreme Court |
Assumpsit, &c. in Sumter Superior Court. Tried before Judge Warren, May Term, 1849.
This was an action against Thomas C. Sullivan, an attorney at law, surviving partner of Sullivan and Eraser, for misconduct, in failing to collect the amount of a note placed in the hands of the firm for collection.
On the trial the following receipt was given in evidence:
Levi Justice.
It was in evidence that suit was brought against the makers, to the May Term, 1842, of Sumter Superior Court. The note was placed in the declaration, it was supposed by both parties. These papers, with others, were afterwards extracted from the Clerk's office and burned up: Judgment was never obtained, nor copies of the papers established. Levi Justice ran away late in the fall of 1842, carrying away 18 negroes. It was in evidence that defendant, Sullivan, had collected fifty dollars, on a ft. fa. obtained since 1842, in his own favor, against Dempsey J. Justice, by sale of a lot of land in Bibb county; and also $125 by sale of land in Cobb county, by giving half the amount to the agent through whom the collection was made. Plaintiff's counsel then offered to prove, that when the note' was received for collection, it had the indorsement of John Rawls, who resided in Pulaski county, and was solvent and able to respond at the time. Defendant objected to the testimony being admitted, which objection was sustained by the Court, and plaintiff excepted.
The Court charged the Jury that "if, by the professional neglect of the defendant, the plaintiff had boon damaged, he was entitled to recover to the amount of that damage; that the defendant was not bound to go out of the county to search for property—this was for his client to do; that if defendant had a fi. fa. against Dempsey J. of younger date than the judgment of plaintiff would have been, and by extraordinary diligence and expense, defendant bad raised money on his own fi. fa. he was not bound to apply the money thus made, to his client's debt."
To which charge plaintiff excepted; and these several decisions are alleged to bo erroneous.
E. E. Brown, for plaintiff in error.
B. Hill, for defendant in error.
By the Court.— Nisbet, J., delivering the opinion.
We believe that the Circuit Judge erred in repelling parol evidence of the fact, that the note receipted for by the defendant was indorsed by John Rawls. The receipt describes a note made by Dempsey J. Justice and Levi Justice. The action was brought to charge the defendant for professional negligence, in damages. On the trial the plaintiff offered to prove by parol, that the note was indorsed by John Rawls, in order to lay the ground-work for proving negligence, in not suing him. The objection made here to the evidence is, that the receipt for the note is in the nature of a written contract, which cannot be varied, contradicted, or added to, by parol. We do not think that the rule as to parol evidence to vary, add to, or contradict a written agreement, applies to this case. There can be no-doubt but that an attorney may stipulate, in writing with his client as to the extent and terms of his obligations, and when that is done, the parties will be bound by it as the highest evidence (adopted by them) of what their contract is. The parties have not done that in this case. There is no agreement, in writing, as to the extent of the obligations assumed by the defendant. There is no limitation of those obligations as they exist by the general law. The receipt proves the bailment—the delivery of the note for collection—and no more. The plaintiff's right of action grows out of the relation which the law has established between client and attorney. According to the law regulating that relation, it is the duty of an attorney to collect a note, if necessary, out of an indorser as well as the maker or makers. And where the receipt of the note is established, and there is no contract to limit the attorney's duties, the extent of his duties is to be ascertained by the facts of the case, and the law of this species of bailment applicable thereto. I state the rule generally to be, that when a note is taken by an attorney for collection, and is indorsed, in the absence of any stipulation to the contrary, it is his duty to use the same diligence and skill to collect out of the indorser or any other party legally liable on it, which is necessary to collect out of the makers. Still, it is not true that, in all cases, he is bound to collect out of all theparties on the paper. If, according to the facts of the case, it was manifestly the understanding of the parties, that the indorser, or any other party, should not be pursued, then the attorney is not bound if he fails to pursue that party. As for example, in case of a note taken here for collection, and indorsed by a person residing without the jurisdiction of the State, and too remote for the personal attention of the attorney, and in all cases standing upon a like footing of reason and justice. The fact of indorsement may be proven, and whether the attorney be bound to proceed against the indorser, under all the circumstances of the case, is to be left to the Court and Jury. If, however, there are no facts or circumstances going to show that it was the understanding of the parties, that an indorser or any other party should not be pursued, then the obligation of the attorney is perfect to pursue, if need, be, all the parties. The rule of evidence operates equally in favor of both client and attorney, and may be applied...
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