Crawford v. Gaulden

• Decision Date: 31 January 1862
• Citation: 33 Ga. 173
• Parties: Milton Crawford, plaintiff in error. vs. John P. Gaulden, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 173

Milton Crawford, plaintiff in error. vs. John P. Gaulden, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1862

Trespass on the case, in Decatur Superior Court. Tried before the Hon. Augustus H. Hansell, Judge presiding, at October Term, 1860.

The record in this case presents the facts and questions following:

At the August Term, 1842, of Decatur Superior Court, a judgment was recovered in favor of Robt. Y. Jenkins against Demsey Harrell and William Wooten, principals, and John Harrell, security on appeal, for the sum of $4,146 10, principal debt, and $607 09 interest thereon, and $331 68 damages for a frivolous appeal, with costs of suit.

Upon this judgment a fieri facias was issued on the 17th of January, 1843.

The judgment and fi. fa. were assigned to Milton Crawford, and the collection of the same was confided to John P. Gaulden as an attorney-at-law.

At the time this judgment was rendered, and for some time thereafter, Dempsey Harrell had ample property, subject to the lien of the judgment, to satisfy the same in full.

About the 1st November, 1842, it was agreed between Gaulden and Dempsey Harrell, that if the latter would pay $900 00 on the fi. fa., he should be indulged for the balance for the space of twelve months, and Dempsey Harrell paid the money, and the indulgence was given. In November, 1843, it was again agreed between Gaulden and Dempsey Harrell, that the latter should pay upon the fi. fa. $712 00, and receive indulgence on the balance for another twelve months, which agreement was complied with and carried out.

These indulgences were given by Gaulden with the knowledge and consent of Crawford, and the payments made were to go in reduction of the debt, although understood by Crawford to be a bonus or premium for the indulgence and forbearance to press the collection of the fi. fa.

There is a conflict in the evidence as to whether John Harrell, the security on appeal, knew of and assented to these indulgences or not. Pending the two years for which indulgence was granted, the property of Dempsey Harrell, amounting to some $1,200 00, was sold at sheriff's sale under fi. fas. of younger lien than the fi. fa. belonging to Crawford, which younger fi. fas. were also controlled by Gaulden, as attorney for the plaintiff, and the money arising from such sale was received and appropriated by Gaulden to the payment of such younger fi. fas.

Dempsey Harrell received a letter from Crawford, dated 10th of September, 1842, in which it was proposed that the principal, interest and damages due on the judgment should be aggregated, and sixteen per cent. on the whole amount should be added, and that Harrell should give him a draft on New York for the amount, with such security as would be satisfactory to Gaulden and Strong, and that in the meantime the judgment remain open as collateral security for the payment of the draft; then, all this being done, Crawford would forbear to press the collection of the fi. fa. until the 1st of October, 1843.

This letter was shown by Dempsey Harrell to Gaulden, but it does not appear from the record that the arrangement was ever carried out, nor does it appear that the indulgence hereinbefore mentioned had anything to do with that arrangement.

Some time before December Term, 1844, Gaulden placed the fi. fa. in the sheriff's hands to be levied on the property of John Harrell, the security on the appeal. When the subject was mentioned to him, he begged the sheriff to delay the levy until he could see his brother, Dempsey Harrell, andget him to bring over his property to sell in the place of John Harrell, which request the sheriff granted. Some fifteen or sixteen negroes of Dempsey Harrell\'s were carried across the line into the State of Alabama early in January, 1845, and there was no property of his which could be reached to satisfy the judgment. On the 10th of January, 1845, the fi. fa. was levied on fifteen of John Harrell\'s negroes, and on the 20th of January, 1845, John Harrell wrote to Crawford, begging him to indulge him a few months, stating in the letter that the levy could stand on the fi. fa., and that there would be no danger; that his property was all subject to the debt, but that he wanted a chance to make the money out of Dempsey Harrell, in which he thought he could succeed. He insisted in the letter that he did not wish to make the debt less secure, but promised that if Crawford would give him a little time he should have his money; that all the property he held was in his own right; that he did not intend to squander it, but only wanted to try Dempsey Harrell first, and would not ask Crawford to await any law-suit to condemn Dempsey Harrell\'s property, and that if, on sale day, in May, 1845, any such issue arose, then his, John Harrell\'s, property could be sold.

John Harrell did make an effort to get property from Dempsey Harrell to satisfy the debt, but failed.

On the 14th of February, 1845, John Harrell filed his bill in Decatur Superior Court, alleging that the indulgence was given to Dempsey Harrell without his knowledge or consent; that Wooten was iusolvent; and that by means of the indulgence to Dempsy Harrell by Gaulden and Crawford, the property of Dempsey Harrell was squandered and sold, and the proceeds applied to junior judgments in disregard of the rights of John Harrell, who was but a security. He further alleged in his bill, that when he asked the sheriff and Crawford to indulge him, as hereinbefore stated, he was not aware that indulgence had been granted to Dempsey Harrell, and that he made the promise to pay the money, and the admission that his property was bound for the debt, in ignorance of his rights as a security, and in ignorance of thefacts upon which he was discharged. The bill prayed, amongst other things, that an injunction issue, restraining the sale of his property under the fi. fa. until the bill should be answered, and heard upon its merits.

The injunction was granted as prayed for, and the bill was also answered by Gaulden and Crawford.

On the 14th of April, 1853, the equity case was compromised and settled by the parties upon the following terms, to wit: Dempsey Harrell paid in full of the fi. fa., $4,700 00, $2,343 00 in cash, and turned over to one Gibson, as agent of Crawford, fifty-six bales of cotton, which Gibson was to sell, and retain out of the proceeds a sum sufficient to pay the balance of the $4,700 00, and if there should be any excess, it was to be returned to Dempsey Harrell, and if a deficit, Harrell was to make it good.

This settlement was placed on the minutes of the Court, as a disposition of the case. It also appears, from the record, that a rule was taken at the April Term, 1853, against Gaulden for the money which he had collected on the fi. fa, as he and Crawford could not agree as to the fees due him in the litigation. Gaulden answered the rule, showing that he had collected on the fi. fa., at different times, the aggregate sum of $526 91; that he paid cost for his client to appeal in the equity case, $42 12¹/₂, and also $50 00 to associate counsel in said equity case; that $900 00 at one time, and $712 00 at another time were paid on said fi. fa., and remitted to the plaintiff, and that, when the equity case was settled, $4,700 00 more were paid, making, in all collected on the fi. fa., $6,838 91; that as the case was litigated, difficult and laborious, and protracted for near nine years, respondent, Gaulden, claimed ten per cent. on the amount for his fees in the litigation, to wit, $683 00; that on this basis the account would stand as follows: In hands of Gaulden, $526 91. Deduct therefrom the cost aforesaid, paid by Gaulden, $42 12 ¹/₂, and Hines' fee as associate counsel, $50 00, leaves in Gaulden's hands $434 78. Deduct this latter amount from the $638 00, claimed by Gaulden for fees, leaves due to Gaulden, $248 22, which he asks may be re-tained for him out of the fund in the sheriff\'s hands, arising out of the litigation.

Crawford, by his counsel, controverted Gaulden's answer, charging him with unskillful and mismanagement in the case, by which he, Crawford, was driven to employ other counsel, and compelled to compromise the equity case at a great loss, and that he, Gaulden, was only entitled to fees for prosecuting the debt to judgment in the first instance, and collecting and forwarding $1,612 00, upon which less than five per cent. was reasonable compensation.

Upon the trial of this issue the jury awarded to Gaulden $300 00 for his fees, and he was directed to pay to plaintiff $226 91, the balance in his hands.

On the 10th day of February, 1854, Crawford brought an action against Gaulden to recover damages for his unskillful management of the case against Dempsey Harrell and Woolen as principals, and John Harrell as security on appeal, alleging misconduct on the part of Gaulden in granting indulgence to Dempsey Harrell, and allowing his property to be sold and the proceeds applied to younger fi.. fas., whereby John Harrell, the security, was discharged, and Crawford was compelled to compromise the case in equity at a great loss and sacrifice of $2,500 00.

In order to take the case out of the operation of the statute of limitations, the plaintiff alleged in his writ, that the fact of unskillful, misconduct and mismanagement were unknown to him until April Term, 1853, of Decatur Superior Court, when the facts were disclosed in the trial of the equity case aforesaid.

To this action Gaulden pleaded as follows: 1. The general issue. 2. That the cause of action, if any, existed and accrued to plaintiff more than four years before the action was brought. 3. That the very question of unskillful and mismanagement, if any, was tried and adjudicated under the rule against defendant before stated, and that by the judgment on the rule, plaintiff was estopped. 4. That if plaintiff suffered any loss or damage, it was the result of his own act in compromising the...