Paddock v. Colby

Although a debtor denies his indebtedness, yet, if he expresses a willingness to settle it, if established, and the indebtedness is proved to have existed, the admission is sufficient to take tbe case out of the statute of limitations. The attorney in a case has not power, as such, to employ assistant counsel in the suit at the expense of his client; and an employment by him will not bind his client, unless it can be fairly inferred, from the facts in the case, that such authority was given to him by the client.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, that the account presented by the plaintiff against the defendants was for his services as'eounsellor at law, in a suit in favor of the defendant against third persons, rendered in the year 1833, and that the defendants relied, before him, upon the statute of limitations, as a defence to the action. And upon this point the auditor reported, that the defendant Colby, within six years before the commencement of this action, wrote to the plaintiff a letter, in reference to the plaintiff's claim, in which he stated, that he did not suppose that he ought to pay the demand, that he could not feel satisfied that he ought to pay it, but that, if it were right, he would pay it, as'lie did not mean to decline paying a just debt. The auditor also reported, that Colby, at the time the writ in this action was served upon him, said to the officer who served the writ, that he had assured the plaintiff he would not take advantage of the statute of limitations. As to the account presented by the plaintiff, the auditor reported the facts, in substance, as follows. In 1833 there was pending in the supreme court, in Orleans county, a suit in favor of these defendants, in which action Isaac F. Redfield was attorney for them; and, at the March term, 1833, Redfield employed the plaintiff to assist him in the cause, saying “ that he presumed Capt. Colby would justify him in employing assistance, by reason of the cost.” The plaintiff, pursuant to this employment, rendered the services, from term to term, charged in his account; and the auditor reported, that the amount charged was no more than a reasonable compensation for the services. And the auditor, upon these facts, submitted the questions of law to the court. The county court, — Ingalls, Assistant Judge, presiding, — accepted the report and rendered judgment thereon for 'the plaintiff. Exceptions by defendants. 1. The admission made by Colby to the officer, of his assurance to the plaintiff, is no sufficient acknowledgment of the debt, to take the case out of the statute of limitations. It does not import an admission, that the debt is just, nor a willingness to remain liable for it; Phelps y. Stewart et al., 12 Vt. 256; Cross v. Conner, 14 Yt. 394; but, on the contrary, it negatives both, and implies a confidence in other defences. Bangs v. Hall, 2 Pick. 368. Bell v. Morrison, 1 Pet. 368, 374. 2. No inference of a promise can be drawn from the letter written by Colby to the plaintiff; for Colby therein denies all liability upon the demand. Broion v. Campbell, 1 S. & R. 176. Clementson v. Williams, 8 Cranch 72. Wetzell v. Bussard, 11 Wheat. 309. Bangs v. Hall, 2 Pick. 368. These words were held no sufficient acknowledgment; — “I will see D., or write him ; I have no doubt he has paid it; if by chance he has not paid it, it is fit it should be.” Poynder v. Bluck, 5 Dowl. 570. See BrigstocJce v. Smith, 1 C. & M. 483, cited at length in Chitty on Contracts, 823. All the leading modern cases require an unconditional promise, or its equivalent. Exeter Bank v. Sullivan, 6 N. II. 135. Whitney v. Bigelow, 4 Pick. 110. Porter v. Hill, 4 Greenl. 41. Deslion v. Eaton, 4 Greenl. 413. Russell v. Copp, 5 N. H. 154. Bailey v. Crane, 23 Pick. 324. If the new promise be conditional, it cannot be given in evidence in a suit for the old debt; Lousdale v. Brown, 4 Wash. 148; Hay don v. Williams, 7 Bing. 163; Lechmere v. Fletcher, 1 C. & M. 626; and it must be declared upon specially; Chit, on Cont. 821 note (z.) But the words, “ if it be right, I will pay,” admit nothing and promise nothing. 3. The defendants never employed the plaintiff, nor does the report show such an' employment by the attorney, as will bind the defendants. The case of Briggs v. Georgia, 10 Vt. 68, decides, that an attorney, who has the management of a cause, may employ assistant counsel, in the absence of his client, so as to charge the client; but that an attorney, who is merely employed to attend to the case, cannot do this. The court will not go beyond the report, and presume the existence of facts, which would authorize the employment. The case, then, presents the question, whether an attorney, under all circumstances, by virtue of his general authority, has power to charge his client by the employment of associate counsel. It does not appear, that the attorney had any agency, or “ general management,” or that the clients were not in the vicinity. It sufficiently appears, that Mr. Redfield was both the attorney and agent in managing the suit, — neither of the defendants attending court,— and it was unquestionably his duty to do all, which a prudent man would deem necessary, in order to ensure a judgment in his client's favor. Briggs v. Georgia, 10 Yt. 68.