Schoregge v. Bishop

• Decision Date: 18 August 1882
• Citation: 13 N.W. 194,29 Minn. 367
• Parties: SCHOREGGE AND ANOTHER v BISHOP AND OTHERS.
• Court: Minnesota Supreme Court

29 Minn. 367

13 N.W. 194

SCHOREGGE AND ANOTHERvBISHOP AND OTHERS.

Supreme Court of Minnesota.

Filed August 18, 1882.

Appeal from district court, ninth judicial district, county of Redwood. Order denying defendants' motion to set aside the verdict and for a new trial.

Brown & Wiswell, for respondents.

Seagrave Smith, for McCormicks. A. Wallin, for Gordon.

VANDERBURGH, J.

The defendants McCormick, who were partners using the firm name of C. H. McCormick & Bro., prosecuted as plaintiffs an action in the district court of Renville county, through their attorney, M. O. Little, Esq., against one Henry Schoregge, and duly recovered judgment therein on the seventeenth day of February, 1874. On the third of March following the same attorney caused an execution, signed by him as attorney for them, to be issued upon the judgment to James Arnold, sheriff of the county, who proceeded to levy upon certain chattels as the property of the judgment debtor. Thereupon the present plaintiffs herein claimed and duly demanded the property as theirs. The sheriff having required indemnity under the statute, the attorney of the plaintiffs in execution, in their name and behalf, together with defendant Gordon, executed an instrument in the nature of an undertaking, but under seal, and delivered it to the sheriff. The following is a copy:

“Whereas, James Arnold, sheriff of Renville county, has levied upon and seized, and is about to sell, the following-described property, to satisfy an execution in the above-entitled action, as the property of said defendant, to-wit, three cows, one three-year-old steer, and two yoke of oxen; and whereas, William and John J. Schoregge claim to own said property: Now, therefore, the undersigned agree hereby to bind ourselves to indemnify and protect the said sheriff from all costs, harm, expense, against said William and John J. Schoregge, by reason of said levy and sale of said property.

“Witness our hands and seals this fourteenth day of March, 1874.

“C. H. MCCORMICK & BRO., [Seal.]

Per Little, their attorney,

“BISH. GORDON. [Seal.]”

The claimants, John and William Schoregge, having recovered judgment against the sheriff in a suit against him for the value of the property, he ought this action upon this instrument, and these plaintiffs have been duly substituted for him as parties. There is no evidence of any direction or express authority to their attorney by McCormick & Bro. to execute the writing for them; the sole question being as to the extent of his implied authority to act for them as their attorney and representative, it being admitted that they were non-residents of the state. At the trial the defendants requested the court to instruct the jury, among other things, that “if the jury find from the evidence that the bond in suit was signed by M. O. Little, Esq., attorney of the McCormick Bros., as it purports on its face to be signed, and that said Little had no other authority to sign the instrument than such as is implied in an attorney's retainer, then McCormick Bros. are not bound, and the bond is void as to them.” Which request the court refused, but did charge that “the attorney had the implied authority by virtue of his retainer alone to sign his clients' name to a bond of indemnity whereby he secured his clients' claim.” The questions raised by the defendants' exception to this ruling and instruction of the court are the only ones requiring our attention.

1. It was of no importance that the instrument was sealed. The law did not require it. Gen. St. 1010. If otherwise valid it may stand, and be sufficient as an undertaking. “If an act is done that a party may do without deed, it is none the less effectual that it is done by deed.” Tapley v. Butterfield, 1 Metc. 517; Dickerman v. Ashton, 21 Minn. 538.

2. It is objected that the partnership name was used. It was a partnership matter in a partnership suit, and the undertaking was valid as a simple contract if the attorney was authorized to make it. Amable v. Russell, 109 Mass. 72, 74, cited by appellant, has no application here. In that case the law required a bond, and the objection was that one partner could not, without express authority, bind the firm by a sealed instrument.

3. While the judgment creditors might have employed another attorney to enforce the judgment without any formal substitution or notice, (Knox v. Randall, 24 Minn. 495,) the attorney of record, in the absence of any new appointment of himself or another to act, had implied authority to proceed to issue execution, and to enforce and collect the judgment, without any fresh retainer or direction from his client. Sheldon v. Reisdorph, 23 Minn. 519.

Again, independently of his former relation to his clients, it will not be presumed that Little continued to act for them after judgment without authority, but the contrary. Berthold v. Fox, 21 Minn. 54;Gemmel v. Rice, 13 Minn. 404.

4. Having authority to proceed to the enforcement and collection of the judgment, was he also authorized to bind his absent clients by this instrument without their express direction or consent? It must be assumed from the record that the levy was made by the sheriff, in good faith, upon property in the possession of the judgment debtor and colorably his, and that the proper demand was made upon him by the claimants under the statute. It is also to be presumed (nothing appearing to the contrary) that the attorney acted in good faith and with reasonable discretion in seeking to retain the...