Dentzel v. City & Suburban Ry. Co.

• Decision Date: 10 January 1900
• Citation: 45 A. 201,90 Md. 434
• Parties: DENTZEL v. CITY & SUBURBAN RY. CO. et al.
• Court: Maryland Court of Appeals

45 A. 201

90 Md. 434

DENTZEL v. CITY & SUBURBAN RY. CO. et al.

Court of Appeals of Maryland

January 10, 1900

Appeal from Baltimore city court; Charles E. Phelps, Judge.

Action by Gustav A. Dentzel against the City & Suburban Railway Company and the Baltimore Consolidated Railway Company. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD BRISCOE, and SCHMUCKER, JJ.

Thos Ireland Elliott, for appellant. Wm. S. Bryan, Jr., and George D. Penniman, for appellees.

BOYD J.

The appellant, who was plaintiff below, leased a lot of ground and located a carrousel at Lakeside Park, which belonged to the Lake Roland Elevated Railway Company. He sold his lease carrousel, and other property connected with it to Gideon Emory for $8,000, one half cash, and the other half secured by chattel mortgage, which became due on the 1st day of September, 1895. Before the deferred payment matured, Emory became dissatisfied, and the appellant verbally agreed to take the property back, and release him. The carrousel remained at Lakeside Park, which had become the property of the City & Suburban Railway Company, until the appellant brought this action of replevin. After that company became such owner, which was in the early part of 1895, the appellant, through William F. Johnson, his attorney, who resided in Philadelphia, tried to sell the carrousel to the company in order to get the claim against Emory settled; Emory having commenced the negotiations with the Lake Roland Company while it still owned the park. Perry Lee Downs, who was at that time practicing law in the city of Baltimore, was employed by Mr. Johnson, and after a considerable lapse of time he and Mr. Penniman, the attorney for the railroad company, finally agreed upon $3,000 as the price to be paid for the property, and Mr. Penniman, in payment of it, gave Downs the check of the company, dated January 24, 1896. Downs gave Penniman what purported to be a bill of sale from Emory and Dentzel to the railway company for the carrousel and other personal property, and also delivered to him the original mortgage from Emory to Dentzel, with what purported to be the release of Dentzel in the short, statutory form. It subsequently developed that the name of Dentzel to both instruments had been forged, although the signature of Emory was genuine. Downs never accounted with the appellant or Mr. Johnson for the $3,000, and this proceeding was instituted in September, 1898. At the trial the court rejected the prayers offered by the plaintiff, and granted one that instructed the jury to render a verdict for the defendant, which was done, and this appeal was taken from the judgment entered on that verdict.

Downs' connection with the case seems to have commenced in May 1895. On the 23d of that month Johnson wrote to him asking him to get the mortgage from the clerk's office. A few weeks afterwards he wrote again for it, and on June 15th acknowledged its receipt from Downs. Several letters from Johnson to Downs were offered in evidence, all of which the plaintiff testified he had his authority to write. One of them shows he had returned the mortgage to Downs; and in the one of December 11, 1895, after speaking of Emory's negotiations with the former company, he said they had agreed to let the company have the carrousel for $3,000, if it gave its indorsed notes of $1,000 each, payable in June, July, and August of that year; but the company had declined that. He then said that, as there was such delay, there was no reason why they should give up the additional $1,000, and concluded the letter as follows: "You will be kind enough to act upon this line: That we want our $4,000, and we want it now; for, after all this delay, it is foolishness for us to defer the matter. If they don't settle, take proceedings upon the mortgage, and we will take back the property, and hold Mr. Emory for the balance. I understand Mr. Emory to be very good. Please put some 'ginger' in this, and get a move on you." On December 17th, Johnson wrote to Downs that they were willing to release Emory if he would give them an order to remove the carrousel, "or we will do the other thing and that is to sell all our right, title, and in terest in the matter to the railroad company for the sum of $3,500, to be paid on or before the 1st day of February, 1896. Now, if this last proposition is accepted, we want negotiable paper for the thing at once. These are your instructions, and kindly act accordingly." On January 10, 1896. Johnson telegraphed Downs: "No answer to my letter proposing 3,250. Anything to report? Drop a line." On the 14th of that month Downs was at Johnson's office (as he says he was frequently), and the latter wrote to the appellant, telling him of that fact, and added: "He says that they have made a flat offer to pay him $3,000 on or before the 1st day of February in full for the carrousel and appointments, or that you may take the same away." On the next day the appellant wrote to Johnson: "In regard to the Baltimore matter, I beg leave to say that I am willing to take the $3,000 cash, but do not want to pay the $250 attorney fees. Under this condition I will take the same. Get the money, as I need it badly. Make an immediate settlement." A letter which appears in the record as of date January 14, 1895, but was evidently 1896, from Downs to Penniman, which was written on the business paper of Johnson, was sent as follows: "Called here to-day upon telegram of Mr. Johnson in reference to the Dentzel claim against the City & Suburban. Mr. D. will take $3,000.00 cash, and not one cent less. If this is not satisfactory, will remove the property on Saturday. Please give me your answer on Friday." Downs and Penniman met in a few days, and had some controversy about the amount; the former claiming that the latter had agreed to give $3,000, while the latter said it was a less sum. They agreed to refer it to a mutual friend, and he decided that Penniman had agreed to give the $3,000, and Penniman acted accordingly, and directed his company to issue its check for that amount, which was done. What we have quoted, together with other evidence in the record, shows conclusively that Johnson, who was the general attorney of the appellant, had employed Downs to act; that his letters to him were written with the authority of the appellant; and that Downs was authorized to collect the money, or, on failure to do that, to institute proceedings to recover the property. Under these circumstances it seems to us that the railway company was fully authorized not only to deal with Downs, but to pay him the money. It is true that he was not an attorney of record for the appellant at any time pending the proceedings, as no suit had then been brought. But "the relation of attorney and client commences from the date of the employment of the attorney; that is, from the time when the agreement or contract by which the attorney is retained is consummated." 3 Am. & Eng. Enc. Law (2d Ed.) 316. His authority does not commence with the institution of the suit, but, when employed in anticipation of a suit, he has as much power to bind his client before as after the suit. Hefferman v. Burt, 7 Iowa, 320. Of course, that is only so when he has been actually employed for the purposes of that suit. We held in Railway Co. v. Rider, 45 Md. 24, and Harrison v. Morton, 87 Md. 671, 40 A. 897, that, although service of process, issued to bring the defendant into court, on an attorney is not sufficient, yet the attorney can waive the service of such process, and enter his appearance, and the presumption is that he had authority to do so. If he could not bind his client until he became attorney of record, a claim sent to an attorney for collection could not legally be paid to him unless...