Adams v. Fort Plain Bank

By the court,

As all the demands which are the Subject of this action were included in one assignment to the plaintiff, and are all equally subject to the objection that they were purchased by an . attorney and counsellor of this court for the purpose of prosecution, the fact that the referee reported in favor of the plaintiff as to a part of such demands and against him as to others, shows conclusively that he did not regard the objection as having any force. It is apparent that he regarded the fact that plaintiff was an attorney and counsellor of this court when the assignment was made, as wholly immaterial, and that it would not and did not, in any degree, influence his decision. The point made upon the admission of evidence of the fact is, therefore, not well taken.

The decision of the referee was put solely upon the ground that all the demands sought to be recovered, except those mentioned in the 2d and 3d paragraphs of his report, which accrued in August, 1849, and June, 1850, were barred by the statute of limitations.

The principal, if not the only question for the consideration of the court is, whether the ruling of the referee is correct. The demands which the referee held were barred by the statute, with the exception of charges amounting to about $40, for drawing papers and similar services performed in 1839 and 1847, not relating to any action, were the taxable costs in suits prosecuted by the plaintiff’s assignors as the attorneys of the Fort Plain Bank. These costs were included in judgments entered up in those suits *57in favor of the bank, in the years 1842 and 1847, with the exception of $11.55, which were costs in a suit which the referee finds was commenced in 1842, and in which no services were performed after that date.

The plaintiff charges these costs as due to him on the 10th August, 1842, and thus concedes, I think, that the suit was at an end in some way at that date, and the relation of attorney and client in that suit dissolved. As to this latter item, there can be no question but that it is barred by the statute in the same manner as- the charges for drawing papers, &c., amounting to $40, above referred to. As to these items, the cause of action accrued more than six years before this action was commenced. As to the other items, those for taxed costs included in the judgments entered up in favor of the bank, the plaintiff claims that they are not within the statute, for the reason that the relation of attorney and client was not dissolved by the entry of the judgment; that as the bills of costs contained charges for prospective services and prospective disbursements to be incurred when those services should be performed, they entered into and formed a part of the contract between the attorney and the client; that the contract was entire, and that the attorney was bound to perform such prospective services, and that the statute did not begin to run until they were performed. This position cannot be maintained, and the argument to support it is fallacious. Upon a general retainer in an action, an attorney is employed to prosecute or defend it for the purpose of obtaining a final judgment therein in favor of his client. His general authority, in the absence of evidence to show that his retainer is for a different purpose, is not presumed to extend beyond the termination of the suit. A final judgment is such a termination. The definition of it is, that it is a judgment which puts- an end to the suit; and when this end and final determination of the suit is reached, the attorney’s work under a general retainer is done, and he

*58may demand payment for Ms services. It would be no answer to such demand for the client to say, “ You have not yet issued execution upon the judgment.” The conclusive reply of the attorney would be, that the client is not bound to issue an execution in the attorney’s name, but may employ any other attorney to issue it. It may be conceded that under a general retainer an attorney on record is not only authorized to prosecute the suit to judgment, but that he may also issue execution and receive the money for which judgment is recovered, and upon the receipt of the money may discharge the party and acknowledge satisfaction of the judgment. (Stewart agt. Biddlecome, 2 Coms. R., 106, and cases cited.) But it cannot be claimed that it is the duty of the attorney, under such a retainer, to do more than perfect the judgment. Under a special retainer to collect the debt his duty might be different. In Harris agt. Osborne, (2 Cr. and M. R., 629,) Lord Lyndhurst said : “ When an attorney is retained to prosecute or defend a cause, he enters into a special contract to carry it on to its termination.” And in Rothers agt. Manning, (1 B. & Ad., 15; 20 E. C. L. R.,) Lord Tenterdon said : “ When a suit is terminated by a sentence, there is no doubt that a proctor has a right to call for the amount of his bill; his duty is then concluded. As, therefore, the plaintiff’s right of suing on the items in question accrued at the time of the judgment, and was not enforced within six years, he is not entitled to recover.” In Whitehead agt. Lord, (11 E. L. & Eq. R., 588,) Parke, B., says : “ An attorney cannot sue for his bill until the termination of the suit, subject to the exception stated in Harris agt. Osborne”—clearly implying that he may sue upon the happening of that event. In 2 Pars. on Con’t, (373,) it is said that the statute of limitations begins to run if the services of the attorney are in any way brought to an end, because he can bring an action for his services at once. There can be no doubt, I think, that under a general retainer to prosecute an action, the *59attorney may, upon perfecting judgment in favor of his client, bring an action immediately to recover his costs, and that if he neglects to prosecute within six years after such judgment is perfected, the statute of limitations may be pleaded, and will bar the action.

If the position assumed by the plaintiff were correct, that the contract between his assignors and the bank was entire, and included the performance of the prospective services and the making of the prospective disbursements which are charged in his bills, the action must necessarily fail, and the judgment should be reversed, for the reason that it appears that none of those services have been performed or disbursements paid or incurred.

The plaintiff insists that the judgment is erroneous, for the reason that the referee has allowed no interest upon the demands allowed by him in the 2d and 3d paragraphs of his report. We think there is no error in this omission to allow interest. The demands were unliquidated until the report was made, as between the attorney and client. The fact that the costs and disbursements were taxed and included in judgments, furnished no evidence in favor of the attorney in an action against his client that the disbursements charged were expended or incurred by the attorney. The value of the counsel fee charged in the action against Gilbert and others was never fixed until the time of the trial. The referee made a correct computation of the amount due in the last mentioned suit.

The bill of costs was admitted to have been adjusted in that case at......$69 64

To that sum he probably added counsel fee - 25 00

Making.......$94 64

And from this sum deducted all the items in the bill on page 21 of case, after the charge “ postage on costs to clerk 5, ans. 5,” except the last three, which in the aggregate amounted to - 22 32

Thus leaving the amount reported - - - 12 32

*60These items were properly deducted, as they were for prospective services and disbursements, and for witnesses’ fees and travel, not shown to have been paid or incurred by the attorneys.

We think there is no error in the judgment, and that it should be affirmed, with costs.

1st. There is no evidence in this case whether or not the judgments upon which the costs sued for accrued, have ever been paid. If the professional relation exists between attorney and client, it exists between the client and the attorney in the action, and does not follow the debt by an assignment óf it. This relation is a confidential one, existing by mutual consent, and is not a matter that can be transferred by one party without the consent of the other. Without the consent of the client or his successor, and an order of the court obtained and rule entered thereon, the confidential relation, if not previously dissolved, or ended by the lapse of time, still continues. If the prospective services charged for are needed by the client, and there is any liability to perform them, he can still call upon his attorney, if living, to perform those services, and is not obliged to transfer his confidence and accept of such assignee as his attorney has chosen to select. The right to perform these prospective services, therefore, in the action where the costs have been assigned, is no right that has been assigned to, or that belongs to the plaintiff in this action. He has taken, by the assignment, only that part of the debt for which the attorney who performed the services in the action could have sued his client. If the attorney, or attorneys, who performed the services had now sued their clients on these demands, it will hardly be contended that they could have recovered for that portion of prospective services which they had not performed. If the report of the referee is in other respects correct,—if it allows the plaintiff for the prospective costs in the action *61in which any allowance has been made by him—the report to that extent would have been error, if it had been excepted to by the defendants. I have examined this point in the case only because the plaintiff insists that the prospective services remaning unperformed, the contract between client and attorney is still running, unaffected by the statute of limitations. In this he is mistaken. Even the retained attorney of the party loses his powers to act by lapse of time—to do certain acts in relation to the judgment. The statute prohibits him from acting as attorney in satisfying the judgment after two years from the time of filing the record, (2 R. S., 362, § 22; vol. 3, 5th ed., 640;) and another, against issuing an execution after five years. (Code, §§ 283, 284.) These are limitations of power ; and it may be doubted whether within the period not as above prohibited, the attorney, without special direction, would act properly by the exercise of his powers, without positive directions.

Limitations of the time to bring actions are created by and derive their authority from statute. The statute is expressed in general terms, and includes all actions upon contract obligation, or liability, express or implied.

On principle, there is no more reason why the statute should not apply to an attorney's bill than to any other contract, after the termination of the service upon which the demand arises ; and this, it seems to me, is the only question upon this point to be determined. Were these several actions in which the costs are claimed, brought to a determination six years before the commencement of this action ? The case, stripped of all unnecessary drapery, is this : The plaintiffs in those several judgments desired an attorney to perform for them a professional service. In the absence of any express agreement, the law implies that the attorney is entitled to his compensation when that duty is performed. What was that duty? It was to obtain judgments upon the demands prosecuted. When so obtained, *62that duty was performed. Did the plaintiffs in those actions want more than that ? If they did, it was doubtless their right to demand it; and the attorneys therein had provided against this future contingency by their prospective charges taxed or adjusted in their bills. If the plaintiffs did not desire this future duty, there was already an end to the service. The attorney’s implied promise to perform, like any other promise, was also subject to the statute of limitations, and if not demanded within six years, he was not bound to perform it. If it was "the attorney’s duty to perform further service without demand, then there is no evidence in the case of his performance of this duty. If the client in all that time neither paid him for what he had done, nor tendered him pay for the future, he owed the client no further duty. The obligations are, and should be, reciprocal. If the statute applies against one, it applies against the other. That has been adjudged. It was held in Stafford agt. Richardson, (15 Wend., 302,) that the attorney owed no duty to his client at the end of six years—not even to the extent of liability to pay over the money he had collected for his client in the action—and that the statute of limitations (immoral and disgraceful as it would seem to be, that an attorney should claim its advantages,) was held to be a good bar, when set up by the attorney, against such a demand by his client. If an attorney is allowed such dispensations in his own favor, I can see no good reason why he should not be subject to the same rule against him.

As a general rule, in elementary authority, as to the period from which the time is to be calculated, it is from the time when the creditor could have commenced the action. (2 Parsons on Con’t, 370, 372.) When was this period in the case before us ? Was the attorney, after perfecting judgment for his client, bound to wait for years to see if the client would direct him to earn the prospective charges?

*63The cases cited by the plaintiff to show a different rule, do not establish his proposition. Parsons says, (vol. 2, 373,) “ The statute does not begin to run against the claim of an attorney for professional services until he no longer acts in that matter as attorney.” These dates, from which he longer acted, the referee has given, in each of the cases, where costs are claimed. We may imply that the statute then begins to run. If this is the period, the referee has correctly held upon that point. Some of the cases cited by the plaintiff are more unfavorable to him than the rule is stated in Parsons. In the case of Vansanden agt. Brown. (9 Bing., 402,) the holding is, that the attorney is not compelled to wait the end of the suit before he can proceed against his client to recover his costs. So the case of Whitehead agt. Lord, (cited from 11 Eng. L. & E., 587,) holds no doctrine contrary to this. The suit in that case was depending—had not been brought to a decision and decree ; and it was correctly held that the first costs incurred in the action, though it had been permitted to rest more than six years, were not barred. The contract was entire, and Parke, Baron, said the attorney could not bring his action till the termination of the suit. Though it was conceded that there were exceptions to that rule, yet it was not denied that at the termination he could sue. Nor does a case that I have found hold to a different rule. I think the referee correctly decided this point. No errors have been committed, that I can perceive, upon this point, against the plaintiff.

Judgment should be affirmed.

[It is understood that the plaintiff has brought an appeal in this case to the court of appeals.]