Vickery v. William Mcclellan A1

• Decision Date: 30 September 1871
• Citation: 1871 WL 8256,61 Ill. 311
• Parties: JOSEPH VICKERYv.WILLIAM MCCLELLAN et al.a1
• Court: Illinois Supreme Court

61 Ill. 311

1871 WL 8256 (Ill.)

JOSEPH VICKERY

v.WILLIAM MCCLELLAN et al.a1

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Circuit Court of Bureau county; the Hon. EDWIN S. LELAND, Judge, presiding.

Messrs. SHAW & CRAWFORD, for the appellants.

Mr. GEORGE W. PLEASANTS, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The appellants respectively recovered judgments amounting in all to $2552.16 against the appellee, McClellan, in the Henry county circuit court at the October term, 1862, and sued out executions thereon within a year, which were duly returned wholly unsatisfied. Some time in the year 1865, while the lien of said judgments was in full force, Jerome B. Carpenter, as the attorney of appellants, for fifty per cent of the face of the judgments paid by one Morse, with the consent and in the interest of the defendant, executed to said Morse what purported to be assignments without recourse of these judgments, and entered upon the judgment docket receipts for the amount thereof, as per assignment to John Morse, and afterwards absconded with all the money. McClellan, in the summer of 1866, repaid to Morse the amount which he had paid to Carpenter, without interest, but to his full satisfaction.

A few months thereafter, November 10, 1866, appellants filed their bills to declare the liens of said judgments in full force, to cancel the said entries in the judgment docket and to obtain executions.

The question in the case is, whether or not this disposition of the judgments by Carpenter was authorized or ratified by his clients, the appellants.

An attorney at law, by virtue of his general character as such, has no power to discharge his client's judgment by receiving a less amount or anything but money in satisfaction. Nolan v. Jackson, 16 Ill. 273; Miller v. Edmonston, 8 Blackf. 292; Wilson v. Wadleigh, 36 Maine, 499; Pennison v. Patchin, 5 Verm. 352.

Was there any special authority in this case?

The appellants were laborers, residing at remote points in the Wisconsin pineries, one of them spending a portion of the time in Maine.

On the 19th day of August, 1862, they placed the notes, upon which the judgments were obtained, in the hands of Carpenter for collection. Morse was present at the time. He testifies that they told Carpenter that McClellan could not pay anything; that they had offered to take sixty cents on the dollar; and that they told Carpenter to take the notes and do the best he could with them, not giving him any specific directions. The notes were long past due.

The receipts Carpenter gave for the notes expressed that they were to be collected if possible, by him, and no fees to be charged if not collected; if collected, twenty-five per cent fees to be charged on what was collected.

It is evident that these were desperate claims against an insolvent debtor; that the appellants did not expect collection in full; that they regarded it as doubtful whether anything could be collected, and were unwilling to risk anything in efforts to that end.

In view of the circumstances, and the statements of appellants to Carpenter in the presence of Morse, that McClellan could not pay anything, that they had offered to take sixty cents on the dollar, and the direction to Carpenter to take the notes and do the best he could with them, we think Morse and McClellan were fairly entitled to believe that Carpenter was invested with a discretionary power to accept less than the amount of the judgments in their discharge, and that they were justified in acting on such belief and making the compromise they did, as a binding one on the appellants.

After the recovery of the judgments in October, 1862, and the return of executions wholly unsatisfied, the matter rested in that condition until October 7, 1864, when Carpenter wrote to the appellants that McClellan had just offered him fifty cents on the dollar, and requested them to write at once if they would take it, saying he thought it was about the best thing they could do. They replied October 15, 1864, through Joseph Vickery, that they were willing to meet McClellan on any reasonable terms, but the writer thought fifty cents on the dollar as little as McClellan could expect to get off with after paying Carpenter's fees and costs; said that he would submit it to his brothers as they were more interested; wanted Carpenter to get all he could; and thought if they could realize fifty cents on the dollar, and McClellan pay all costs and attorney's fees, it would be satisfactory. A subsequent letter from Joseph Vickery, of November 28, 1864, is of similar tenor.

These letters can hardly be regarded as a revocation...