Tredwell v. Doncourt — 18 A.D. 219

Majority

p. 219

Timothy Tredwell, Respondent, v. Adolphus Doncourt, Appellant.

Headnote

Attorney and client 7— proof that a letter written by an attorney was authorized.

Where the defendant in an action claims that in making the contract which is the subject‘thereof, he was, to the knowledge of the plaintiff, acting as agent for another party, which is denied by the plaintiff, evidence that the plaintiff upon being told by the defendant that the alleged principal refused to perform the contract, said, “ I’ll make her (the alleged principal) pay for it; I’ll put it in Lawyer Steinert’s hands,” is prima facie proof that the lawyer mentioned had authority to act as the plaintiff’s agent in writing a letter to the alleged principal stating that the plaintiff had placed in his hands for collection a claim against her arising out of the same transaction, and renders the letter admissible in evidence as an admission by the plaintiff, notwithstanding the fact that it was written before any action was commenced.

Appeal by the defendant, Adolphus Doncourt, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of December, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

This action was originally brought in the court of a justice of the peace where the plaintiff recovered a judgment against the defendant.

A. JSf. Weller, for the appellant.

Henry A. Monfort, for the respondent.

The determination of this case turned upon the question whether the defendant in his negotiations with the plaintiff acted as principal

p. 220

or as the agent of Mrs. Willets. The plaintiff claimed to have dealt with the defendant as principal solely. The defendant claimed to have, dealt as agent, to the knowledge of the plaintiff. ■ The issue was sharply defined, and the proof conflicting. The .verdict must stand unless error was committed in excluding a letter' written by plaintiff’s attorney to Mrs. Willets, which contained a statement that plaintiff had placed in the attorney’s hands, for collection, a claim against her arising out of the transaction involved in the present suit. It was admitted that this letter was written by the attorney, after the plaintiff had seen him. Its contents had a direct •bearing upon the issue, of a pertinent character,, and its admissibility is dependent upon the plaintiff’s connection with it.. If the attorney was authorized by the plaintiff to make claim upon Mrs. Willets for fulfillment of the contract, then the letter is to be regarded as his admission and consequently receivable in evidence. It is a general-rule that an attorney is the agent of the client, authorized to act for and bind him by admissions and declarations when engaged in the actual management of a cause in court or by correspondence relating thereto, and in such connection the admissions are generally conclusive. This rule, however, does not extend to other occasions or' matters aside from the cause in which the attorney is engaged, or to matters of conversation, although it may relate to the matters in controversy. (1 Greenl. Ev. § 186 ; Stephen’s Law of Evidence [Chase’s ed.] 46, 47, and note.) At the time when the letter was written no action was pending, and the relation of attorney and client .did not exist so far as it related to a pending'cause of action. Hone was brought against Mrs. Willets, and the present action had not then been commenced. Admissibility, therefore, must be made to depend upon the existence of an agency in the attorney to write the letter to Mrs. Willets at the time when it was written.

The evidence upon the subject is without practical dispute,' The defendant testified that the plaintiff spoke to him about the trade, and that he informed him that Mrs. Willets would not have the machine; that'thereupon plaintiff stated: “ I’ll show her; I’ll make her pay for it; I’ll put it in Lawyer Steinert’s hands.” The statement of the witness is not so full upon his cross-examination in relation to this matter and is quite consistent with the plaintiff’s present attitude. But it does not conflict with the quoted words in such

p. 221

manner aá to be destructive of their effect, and the plaintiff makes no denial of their utterance. The plaintiff shortly thereafter placed the matter in the attorney’s hands. We are of the opinion that this evidence was sufficient to establish prima facie the existence of authority in the attorney to write the letter, and made the same competent as evidence upon the trial.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.