Tredwell v. Doncourt — 45 N.Y.S. 946

Majority

p. 946

(18 App. Div. 219.)

TREDWELL v. DONCOURT.

(Supreme Court, Appellate Division, Second Department.

June 8, 1897.)

Headnote

Attorneys—Authority—Evidence.

In an action for breach of contract to accept a machine in trade, on an issue whether defendant had acted as principal or as agent of W., defendant offered a letter written by plaintiff’s attorney, S., to W., before suit, but after plaintiff had seen him in regard to the controversy, that contained a statement that plaintiff had placed in the attorney’s hands for collection a claim against W. for refusal to accept the machine. Hell, that evidence of defendant that he informed plaintiff that W. would not take the machine, whereupon plaintiff said, “I’ll malee her pay for it; I’ll put it in Lawyer S.’s hands,” was sufficient, being uncontradicted by plaintiff, to establish prima facie the existence of authority in the attorney to write the letter, and hence made the same competent as evi- ■ dence.

Appeal from Queens county court.

Action by Timothy Tredwell against Adolphus Doncourt to recover damages for breach of a contract for the transfer of a steam-power thresher by plaintiff, for a horse-power thresher and $50 to. be transferred by defendant. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

Reversed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

A. N. Weller, for appellant.

Henry A. Monfort, for respondent.

The determination of this case turned upon the question whether the defendant, in his negotiations with the plaintiff, acted as principal 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 for which the present suit was brought. 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 ¿side from the cause

p. 947

in which the attorney is engaged, or to matters of conversation, although it may relate to the matters in controversy. 1 Greenl. Ev. § 186; Steph. Dig. Ev. pp. 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. None 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. Thereupon plaintiff stated: ‘Til show her; I’ll make her pay for it; I’ll put it 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 manner as 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 concur.