Britton & Hadley v. Frink

“ By the Court, Jewett, Justice

No issue had been joined or judgment by default entered in the suit of Lee vs. Frink before it was settled. The sum due the Plaintiff was less than one hundred dollars. The Defendants as attorneys and counsellors for Lee in that suit, demanded and received for their fees and disbursements $13.27, on its settlement. The extent of the Defendants’ legal charges in that suit, was $10.85, composed of the following items.

(Laws of 1840, p. 327, § 2 ; p. 332, § 11; sub. 2 ; Laws of 1844, p. 402, § 1.)

The Defendants overcharged $2.42. The recovery before the Justice was within that sum, and was well founded upon the evidence in the *105 case; the judgment of the Common Pleas should be reversed, and that of the Justice affirmed.”

A. K. Hadley & H. Hill, Jr,, for the plaintiffs in error, insisted, 1st. That the action before the justice was improperly brought in the name of Isaac Frink, sheriff, &c. Carrier was one of his deputies, and paid the bill of costs. The money paid belonged to Carrier and was paid by him, on his own account—not for the sheriff; and Carrier so declared when he paid the money. That Carrier, as between him and Frink, was bound to pay all damages and costs, for not returning the execution for which Frink, the sheriff, was sued. Frink never authorised the payment of the money, and had never refunded it to Carrier, nor was he liable to repay Carrier; and Carrier should have brought the suit. 2d. From the evidence, no action could be maintained against the Plaintiffs in error, for the excess of costs alleged to have been received. It had been decided by the Supreme Court, that if the bill of costs had been taxed by a proper officer, as made out and paid by Carrier, no action would lie for the excess; ( 2 Denio, 26 .) Ho fees were charged and paid for expense of taxation. Hadley offered to have the costs taxed, which was waived by Carrier. The waiver of taxation and payment ought to have the same effect as if the costs had been taxed. The payment of the bill of costs was therefore to be considered a voluntary payment on the part of Carrier, with a full knowledge of Ms right to have it taxed. The mistake, if any, was one of law, not of fact. ( 9 Cow. 674 ; 1 Wend. 665 .) 3d. The attorneys received no more costs than what they were lawfully entitled to; there was no doubt a mistake in carrying out the charges for copies declaration, but in addition to the items charged, they were entitled to “ counsel perusing and amending narr, $2;” “ notice to plead, 25 cts.;” “ copy costs for Defendant 25 cts., service, 50 cts.—75;” attending to fix amount equivalent to attending taxation, 25 cts.;” “ total, $3.25.”

E. F. Bullard, for the Defendant in error, insisted: 1st. That the action was properly brought m the name of Frink, sheriff, the principal. Although the money was paid by Carrier, the agent, it was paid directly to and for the use of Frink, and did in fact settle the suit and discharge Mm from liability. Frink, the principal, was equally bound by the acts of Ms agent by a subsequent ratification. Ho prior request to pay was necessary. ( 8 Cow. 60 ; 12 Mass. 60 ; 7 Am. Com. Law, 453 ; 9 Peters, 629 ; 4 Wend. 465 ; 10 id. 218.) The bringing of tMs sMt by Frink was a ratification of the payment by Carrier, the agent. Either principal or agent might sue; (Cowp. 805 ; Cow. Tr. 80.) The principal was the only person who could disavow the acts of his agent. *106 The Plaintiffs in error having acknowledged Carrier’s agency, by receiving the money as a payment to the use of Frink, were estopped from denying it. 2d. As there was no taxation, the Plaintiffs in error took the costs at their peril. The payment was not voluntary, as it was demanded by Plaintiffs’ attorney, and received, and was necessarily paid to stop suit and prevent a further increase of costs. Payment of fees illegally demanded is not voluntary payment; (2 Barn. & Cress. 729; 2 Barn. & Aid. 562; 1 Chitty R. 295; 4 Dowl. & Ryl. 283; 9 John. R. 370, id. 201; 15 Wend. 321 .) 3d. The plaintiffs in error received more fees than they were entitled to. {See cases cited in opinion of Supreme Oourt.)

Two or three days after the argument of the cause, the court announced their decision, that the judgment of the Supreme Court was affirmed. There was no opinion delivered. The opinion of the Supreme Court in the case, is therefore referred to as the opinion of this court.