Vooth v. McEachen

• Decision Date: 21 February 1905
• Citation: 181 N.Y. 28,73 N.E. 488
• Parties: VOOTH v. McEACHEN.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 28

73 N.E. 488

VOOTH

v.McEACHEN.

Court of Appeals of New York.

Feb. 21, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Henry W. Vooth against James C. McEachen. From a judgment of the Appellate Division (86 N. Y. Supp. 431,91 App. Div. 30) affirming a judgment for plaintiff entered on a verdict, and an order denying a new trial, defendant appeals. Reversed.

Abram I. Elkus, Carlisle J. Gleason, and Melville H. Cane, for appellant.

Louis O. Van Doren and Hugh L. Reavey, for respondent.

HAIGHT, J.

This action was brought by the plaintiff against his attorney for a breach of contract of retainer; alleging that, without authority, he settled a claim of $840.66, intrusted to him for collection, against the estate of a deceased person, for the sum of $250, which he converted to his own use. The defendant, by his answer, admitted that he was retained to collect said claim, and that he began an action for that purpose, but upon obtaining an offer of $250 he submitted the same to the plaintiff, who authorized him to accept it, which he did-the plaintiff executing an assignment and a release of the claim, which were acknowledged before an officer authorized to take the acknowledgement of deeds-and that thereupon the defendant paid one-half of the amount to a judgment creditor of the plaintiff, pursuant to an order of the court, and that he retained the balance for his services, pursuant to a written agreement authorizing him to do so. Upon the trial the question as to whether the plaintiff rejected or authorized the acceptance of the offer of settlement was sharply litigated, and this question of fact was submitted to the jury, who found a verdict for the plaintiff for the sum of $211.16. The undisputed facts are that the defendant did settle the claim for $250, that he was compelled to pay $125 thereof to a judgment creditor of the plaintiff under an order of the court, and that he retained the other $125 for his costs and expenses.

In submitting the case to the jury, the court, after giving instructions as to the general duties of attorneys to their clients, charged as follows: ‘When negligence has been proved, if you find there was any, in consequence of which a client has lost his case, it is not incumbent upon the client to show that but for the negligence he would have succeeded in that action.’ To this the defendant took an exception. The plaintiff had neither alleged nor proved the value of the claim that he caused to be presented against the estate of the deceased person, nor that it could have been collected, beyond the sum of $250, which was received by the defendant in the settlement thereof. The defendant, however, showed that the claim had been rejected by the administratrix, that there was no memorandum in writing to use in proving the claim at the trial, and that the estate of the decedent was insolvent to the extent of over 50 per cent. The plaintiff did not allege negligence on the part of the defendant, nor was there any proof given tending to show negligence or want of skill on his part. The charge was a breach of duty in settling the claim without authority and in violation of the instructions of the plaintiff. We think that the charge excepted to was erroneous, in that it submitted the case to the jury upon a wrong theory, unsupported by the pleadings or evidence, and authorized the adoption of a wrong measure of damages. According to the instruction, the plaintiff was not bound to show that his claim against the estate of a deceased person was valid, or worth more than the $250 collected thereon. But if the defendant was negligent in settling the claim, he was liable for the whole amount of the claim, $840.66, irrespective of the question as to whether the plaintiff had been damaged in that amount or not. As we have seen, the action was for a willful violation of duty in settling...