Kalkman v. McElderry

Le Grand, C. J., delivered the opinion of this court: The facts in the case are but few. The appellee had obtained a judgment against Newman, on the 5th of March 1858. The attachment was laid in the hands of the gar- . nishee July 16th of the same year. There was no dispute as to the correctness of the claim; it was admitted, as was, also, a certain sum of money which had been collected by .the garnishee from the debtors of the defendant, Newman, in pursuance of the authority conferred by the following instrument: “Know all men by these presents, that I, William W. Newman, have constituted and appointed, and hereby constitute and appoint Y. H. Kalkman, of said city, my sufficient and lawful attorney, in my name, and for my use and benefit, to ask, demand and receive of all and every person or persons, whomsoever, all such debt and debts, sum'and sums of money as arc now outstanding, or shall be due and owing to me, the said William W. Newman, and upon receipt thereof, in my name, as aforesaid, to execute and deliver proper acquittances for the same; and it shall and may be lawful for the said Y. H. Kalkman, to compound or agree to ⁶⁶ accept any dividend for any debt or debts, sum or sums of money, now due or hereafter to become due to me, as he may see fit, at his discretion and to the best of my advantage and interest, but he shall not constitute or substitute any attorney, or attorneys, under him, without my license, in writing, for that purpose first had and obtained. “And the said V. H. Kalkman shall duly account to me, the said William W., upon receipt by him, said Kalkman, of any moneys on my account by virtue hereof, he, the said Kalkman, shall, after deduction of his commissions for collection and charges for professional services, make as just and satisfactory a dividend thereof to my creditors as he can, and settlement with them. “And I, the said William W. Newman, hereby covenant to ratify and confirm whatever acts or things the said Y. H. Kalkman may lawful^ do by virtue hereof in the premises. “ Witness my hand and seal this 1st day of February, A.D. 1858 William W. Newman, (Seal.)” It was properly witnessed and acknowledged before a justice of the peace.

On the 9th of February 1858, through the “Baltimore Sun” newspaper, the garnishee, Kalkman, gave notice to the creditors of William W. Newman to file their claims properly authenticated with him, on or before the 15th day of September 1858, preparatory to a dividend of such funds of said Newman as might then be in his hands by virtue of a power of attorney executed to him by Newman. Some of the creditors filed their claims, but were not paid anything because of the pendency of this action. On this state of case, the court instructed the jury as follows: “That if they find that when W. W. Newman, executed the power of attorney, given in evidence in this case, he was insolvent in fact, and shortly after making the same, he left the State of Maryland, and further find that when the attachment was laid in the hands of Y. H. Kalkman, he had received for the collection made by him under the said power of attorney, the amounts given in evidence and stated in his answer, and had, ⁶⁷ when the said attachment was so laid, made no settlement with any of the creditors of Newman, and had made no dividend among the said creditors, then the said plaintiff is entitled to recover, even if the jury find that prior to the laying of said attachment, lie had advertised, as shown in his answer, and some of the creditors had filed their claims with him.” The court rejected the prayer offered on behalf of the defendant, “that, upon the evidence in the case, the plaintiff was not entitled to recover.” The question before this court is, whether or not the Common Pleas ruled correctly. On the part of the plaintiff i-t is contended, that the instrument under which Kalkman acted was but a simple power of attorney, revocable at the pleasure of Newman; and, on the other side, that it was a valid and effective assignment, conveying, for the benefit of creditors, the legal title to the funds; that