W. W. Kimball Company v. Payne

• Decision Date: 22 April 1901
• Citation: W. W. Kimball Company v. Payne, 64 P. 673, 9 Wyo. 441 (Wyo. 1901)
• Parties: W. W. KIMBALL COMPANY v. PAYNE, ET UX
• Court: Wyoming Supreme Court

64 P. 673

9 Wyo. 441

W. W. KIMBALL COMPANY v. PAYNE, ET UX

Supreme Court of Wyoming

April 22, 1901

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

Replevin for a piano. Defendants claimed storage charges. The facts are stated in the opinion.

Affirmed.

T. S Taliaferro, Jr., and John H. Chiles, for plaintiff in error.

While if a general agent exceed his authority, the principal is bound, provided the party dealing with him does not know the agent's authority is being exceeded, the rule is different as to a special or particular agent. In the latter case, the principal is not bound. (1 Pars. Contracts, Sec. 42.) An attorney is a special agent, and his acts must be strictly within his authority to bind his client. (Rossiter v. Rossiter, 8 Wend., 494, 24 Am. Dec., 62.) Beyond those matters necessarily incidental to the discharge of the purpose for which he was employed, his powers cease. (3 Ency. L., 2d. ed., 345, 347; Welsh v. Cochran, 63 N.Y. 181, 20 Am. R., 519). An attorney has no implied power to assign, or transfer the demand or suit to a third person. (Mechem on Agency, Sec. 813), or to give up the demand, and take other security. (Id.) He cannot enter into any agreement independent of any action (1 Pars. Contr., Sec. 117), nor can he bind his client by an agreement collateral merely to a cause of action intrusted to his management. (Wonderly v. Martin, 69 Mo. App., 84; Robinson v. Murphy, 69 Ala. 547.) The defendants were bound with notice of the extent of the attorney's authority. (Annely v. DeSaussure, 12 S. C., 488.) Any contract between the attorney and defendants for the storage of the piano was independent of the action in which the attorney had been retained, and beyond the scope of his authority. (Herbert v. Alexander, 2 Cal., 420; 1 Pars. Contr., 117; Smith's Heirs v. Dixon, 3 Metc. Ky.; 3 Ency. L., 348; 1 id., 987; Harbach v. Colvin, 73 Ia. 638; Dickinson v. Hodges, 43 N. J., Eq., 46; Lewis v. Duane, 141 N.Y. 313; Smith v. Lamberts, 7 Gratt., 142.) The attorney may have bound himself, but not the principal. (1 Ency. L., 1122; Pars. Contr., 116; Pittingill v. McGregor, 12 N. H., 179.) The attorney's employment ceased when he recovered the piano. He then converted it to his own use, and having converted it, he had no title to convey. He was not, himself, lawfully in possession, so as to have had a lien for his storage of the property.

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

This was a suit in replevin. Some time prior to its institution the plaintiff in error by a suit in replevin had recovered from Gilligan and Taliaferro a certain piano. One Louis J. Palmer was the attorney for plaintiff in error in that suit. Upon the recovery of the property Palmer kept it for a time at his own house, and upon changing his residence, placed it in the custody of Payne for safe keeping. This action for the recovery of the property was brought against Payne and his wife, who defend upon the ground that they have a lien upon it for storage charges. The court below found the amount of the charges for storage, and rendered judgment that the defendants were entitled to possession of the property until such charges should be paid. The plaintiff in error contends that Palmer had no authority to make any contract whatever in regard to the property which would bind his client, upon the general principle that the authority of an attorney, employed to prosecute a suit, is limited to the prosecution and conduct of the suit itself, and that he has no power or authority to bind his principal by any collateral contracts with reference to the property, or other subject-matter of the action.

The precise terms of Palmer's employment are not shown by any letter or other writing. But it appears generally that, the company being a nonresident of the State, he was written to at their instance to bring suit to recover the piano, that he recovered it in an action of replevin, and had it in his possession as their agent. That while it was in his custody he stored it with the defendant Payne.

The powers of an attorney are to be determined in a large measure from the purpose and object of his employment; he has an implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his powers cease. (3 Am. & Eng. Enc. Law (2d ed.), 345). The Massachusetts court say, "An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court necessary or incidental to the prosecution and management of the suit, and which affect the remedy only and not the cause of action." Moulton v. Bowker, 115 Mass. 36. Very clearly an attorney employed to recover specific personal property by suit, would not be authorized to accept other property of a different character in satisfaction, or, after a recovery, to sell it or exchange it. But in such a case, the client being a nonresident, it would be going very far, to say that an attorney would not have authority to receive, for his client, property so recovered. And, having rightfully received it, it would become his duty to provide for its proper care and...