Krause v. Dorrance

• Decision Date: 02 July 1849
• Citation: 10 Pa. 462
• Parties: KRAUSE <I>v.</I> DORRANCE.
• Court: Pennsylvania Supreme Court

10 Pa. 462

KRAUSE v. DORRANCE.

Supreme Court of Pennsylvania.

July 2, 1849.

IN error from the Common Pleas of Dauphin.

McCormick and Boas, for plaintiffs in error, cited 7 Wend. 320; 5 Cow. 376; 6 Ib. 596; 4 Greenl. 533; 3 Call, 200; 2 Pike, 402; 4 Ala. 493.

Rawn, contrà.—3 Call shows that a contest of the right to recover destroys the defendants' right to a prior demand. 7 Greenl. 298, overrules the previous decision in 4 Greenl. 533. But negligence was laid in one of the counts; and, in such case, no demand is required by any decision.

July 2. ROGERS, J.

An attorney is not liable to suit for money collected for another, till demand, or direction to remit. As is said in one of the cases, he is not considered in default until he receives orders from his principal. This principle seems to be well settled in several states, including New York, Virginia, Alabama, and Arkansas, as may be seen from the following cases: Taylor v. Bates, 5 Cow. 376; Ex parte Fergurson, 6 Cow. 596; Rathbun v. Ingalls, 7 Wend. 320; Taylor v. Armstead, 3 Call, 200; Cummins v. McLain, 2 Pike, 402; and Marks v. Shackleford, 4 Alab. 493. In Maine it has been ruled by the same judge in both ways: Staples v. Staples, 4 Greenl. 532, and Coffin v. Coffin, 7 Greenl. 298. This is a case of the first impression in this state, but we feel disposed to follow the current of decisions, for we agree that for a client to sue his attorney for money collected, without notice, would be very harsh, if not reprehensible conduct; and for this reason it is, that this is the first time the point has arisen in this state, for no counsel would be so unconscientious to a brother as to sue him without demand. It is, perhaps, but an act of justice to the attorney to state, that, although not proved, yet he alleges notice was given before the commencement of the suit.

The point is not of much practical importance, as the case will seldom arise, and never unless there are some improper feelings to gratify. But, although the general rule be as stated, it is not without exception, for circumstances may exist which will dispense with the necessity of a demand; as, when the attorney has been guilty of fraud or malpractice, or of culpable negligence in not giving notice of the receipt of the money in a reasonable time; or when he puts in a sham plea for delay; or when he exhibits a manifest desire to baffle the plaintiff, and withhold from him his just demand.

Do such facts exist here as will dispense...