Dentzel v. City & Suburban Railway Co.

Boyd, J., delivered the opinion of the Court. The appellant, who was plaintiff below, leased a lot of ground and located a carousel at Lakeside Park, which belonged to the Lake Roland Elevated Railway Company. ⁴³⁹ He sold his lease, carousel and other property connected with it to Gideon Emory for eight thousand dollars, one-half cash and the other half secured by chattel mortgage, which became due on the first day of September, 1895. Before the deferred payment matured Emory became dissatisfied and the appellant verbally agreed to take the property back and release him. The carousel remained at Lakeside Park, which had become the property of the City and Suburban Railway Company, until the appellant brought this action of replevin. ’After that company became such owner, which was in the early part of 1895, the appellant, through Wm.

F. Johnson, his attorney, who resided in Philadelphia, tried to sell the carousel to the company in order to get the claim against Emory settled—-Emory having commenced the negotiations with the Lake Roland Company while it still owned the park. Parry Lee Downs, who was at that time practicing law in the City of Baltimore, was employed by Mr. Johnson, and after a considerable lapse of time he and Mr. Penniman, the attorney for the railroad company, finally agreed upon three thousand dollars as the price to be paid for the property and Mr. Penniman in payment of it gave Downs the check of the company, dated January 24, 1896. Downs gave Penniman what purported to be a bill of sale from Emory and Dentzel to the railway company for the carousel and other personal property, and also delivered to him the original mortgage from Emory to Dentzel, with what purported to be the release of Dentzel in the short statutory form. It subsequently developed that the name of Dentzel to both instruments had been forged, although the signature of Emory was genuine.

Downs never accounted with the appellant, or M. Johnson, for the three thousand dollars, and this proceeding was instituted in September, 1898. At the trial the Court rejected the prayers offered by the plaintiff and granted one that instructed the jury to render a verdict for the defendant, which was done, and this appeal was taken from the judgment entered on that verdict ⁴⁴⁰ Downs’ connection with the case seems to have commenced in May, 1895—on the 23rd of that month Johnson wrote to him asking him to get the mortgage from the clerk’s office. A few weeks afterwards he wrote again for it and on June 15th acknowledged its receipt from Downs. Several letters from Johnson to Downs were offered in evidence, all of which the plaintiff testified he had his authority to write.

One of them shows he had returned the mortgage to Downs, and in the one of December 11, 1895, after speaking of Emory’s negotiations with the former company, he said they had agreed to let the company have the carousel for $3,000, if it gave its endorsed notes of $1,000 each, payable in June, July and August of that year, but the company had declined that. He then said that as there was such delay there w7as no reason why they should give up the additional one thousand dollars and concluded the letter as follows: “You will be kind enough to act upon this line ; that we want our $4,000 and we want it now, for after all this delay it is foolishness for us to defer the matter. If they don’t settle take proceedings upon the mortgage and we will take back the property and hold Mr. Emory for the balance. I understand Mr. Emory to be very good.

Please put some ‘ ginger’ in this and get a move on you.” On December 17th, Johnson wrote to Downs that they were willing to release Emory if he would give them an order to remove the carousel, “ or we will do the other thing, and that is to sell ail our right, title and interest in the matter to the railroad company for the sum of $3,500, to be paid on or before the first day of February, 1896. Now, if this last proposition is accepted, we want negotiable paper for the thing at once. These are your instructions and kindly act accordingly.” On January 10th, 1896, Johnson telegraphed Downs: “ No answer to my letter proposing $3,250; anything to report. Drop a line.” On the 14th of that month Downs was at Johnson’s office (as he says he was frequently) and the latter wrote to the appellant telling him of that fact and added, “he says that they ⁴⁴¹ have made a flat offer to pay him $j,ooo on or before the ist day of February, in full, for the carousel and appointments, or that you may take the same away.” On the next day the appellant wrote to Johnson : “ In regard to the Baltimore matter I beg leave to say that I am willing to take the $3,000 cash, but do not want to pay the $250 attorney fees ; under this condition I will take the same; get the money, as I need it badly; make an immediate settlement.” A letter which appears in the record as of date January 14, i8g¡, but was exidently i8g6, from Downs to Penniman, which was written on the business paper of Johnson, was sent as follows : “ Called here to-day upon telegram of Mr. Johnson in reference to the Dentzel claim against the City and Suburban.

Mr. D. will take $3,000.00 cash and not one cent less. If this is not satisfactory will remove the property On Saturday. Please give me your answer on Friday.” Downs and Penniman met in a few days and had some controversy about the amount—the former claiming that the latter had agreed to give $3,000.00, while the latter said it was a less sum. They agreed to refer it to a mutual friend and he decided that Penniman had agreed to give the three thousand dollars and Penniman acted accordingly and directed his company to issue its check for that amount, which was done.

What we have quoted, together with other evidence in the record, shows conclusively that Johnson, who was the general attorney of the appellant, had employed Downs to act, that his letters to him were written with the authority of the appellant, and that Downs was authorized to collect the money, or, on failure to do that, to institute proceedings to recover the property. Under these circumstances it seems to us that the railway company was fully authorized not only to deal with Downs, but to pay him the money. It is true that he was not an attorney of record for the appellant at any time pending the proceedings, as no suit had then been brought. But “ the relation of attorney and client commences from the date of the employment of the attorney, that is, from the ⁴⁴² time when the agreement or contract by which the attorney is retained is consummated.” 3 Ency. of Law (2nd ed-.), 316.

His authority does not commence with the institution of the suit, but when employed in anticipation of a suit he has as- much power to bind his client before as after the suit. Hefferman v. Burt, 7 Ia. 320 . Of course that is only so when he has been actually employed for the purposes of that suit. We held in Northern Central Railway Company v. Rider, 45 Md. 24 , and Harrison v. Morton, 87 Md. 671 , that although service of process issued to bring the defendant into Court on an attorney is not sufficient, yet the attorney can waive the service of such process and enter his appearance, and the presumption is that he had authority to do so.

If he could not bind his client until he became attorney of record, a claim sént to an attorney for collection could not legally be paid to him unless he first entered suit. Such a doctrine would not only be in opposition to the universal practice in such matters, but would oftentimes subject debtors, as well as clients, to unnecessary costs. The argument of the counsel for the appellant proceeds on the theory that Downs was a mere agent to sell the property of his principal, but the testimony shows that this claim, represented by the mortgage, was placed in the hands of Mr. Johnson for collection or settlement, and he in turn placed it in the hands of Downs with the consent of the appellant. He was- either to recover the property or collect the money, and if the money had been paid to Johnson there could be no possible question about its being a good payment, and when the fact is established, as it clearly is, that Johnson thus employed Downs to act in the matter, an innocent party dealing with him is as well protected as if he had dealt directly with the original attorney.

If that were not so, merchants and others who pay their debts to attorneys employed by commercial agencies, or by the attorneys who first receive the claims for collection, would not be protected. Whether or not Johnson could be held responsible for ⁴⁴³ the acts of Downs we are not called upon