Howell v. Christy

By the Court —

I am inclined to think that there was no error on the trial in the refusal of the court to restrict the plaintiffs’ recovery to the costs of the action in the case of Dunn v. Howell, on the ground that the plaintiff had not shown what the cigars sold for, and had failed to show any deficiency. It is true that the plaintiffs’ complaint alleged a direction to sell; the sale of the property levied upon by the plaintiff as sheriff; the application of the avails on the judgment recovered against the plaintiff, and the actual deficiency paid, and only claimed judgment for such deficiency; but these averments were not necessary in order to maintain the plaintiff’s action.. It was enough to aver the payment and the agreement to indemnify, or the promise to pay; and upon the proof of this, the plaintiff was entitled to recover without showing a sale of the property levied upon. It was quite sufficient that he paid the amount of the judgment, if the agreement to indemnify was proven; and although the plaintiff only recovered for the amount paid after deducting a sum conceded to have been received from *241tlie sale of the cigars, yet more properly the burden of proving the amount realized upon the sale devolved upon the defendants, if they chose to question the amount of the deficiency. The sale of the property was a matter independent of the indemnity for making the levy, and did not come within the scope of the original instructions to sell from the defendants. In making the sale the plaintiff acted as the agent of the defendants after the judgment was obtained, and after the liability of the defendants had been incurred; and therefore it was for the defendants to establish what were the avails of it, if they disputed the amount which the plaintiff conceded had been realized.

The evidence offered to show the negligence of the plaintiff and the attorney, in the conduct of the suit which Dunn brought against the plaintiff, was properly rejected by the court upon the trial. The question made, as to the attorney’s negligence, in connection with the plaintiff, cannot properly be raised in this action. There is no such relationship existing between the plaintiff and the attorney, or in the duties which either of them was required or assumed to discharge, which renders the one liable in this action for the acts or misconduct of the other. Their positions were separate and distinct, and there was no joint obligation or liability. If the attorney was negligent in conducting the suit, he is individually and alone responsible for his negligence. The plaintiff occupies entirely a different position from that of the attorney in the case. What the latter did was for the defendants, whose business it was to conduct the defence either personally or by attorney after notice had been given them. They were the parties actually interested in the defence. Although the suit was nominally against the plaintiff, he was under no obligation or duty to the defendants to defend the action after they had been notified. All that he did was of a gratuitous character, and imposed no duty upon him which renders him liable for negligence. The judgment recovered was virtually against the defendants, and they cannot impeach it collaterally. The case at bar is not like one *242where notice has not been given, and where the party has assumed to act, and to defend, without notification to those interested. (Bridgeport F. & M. Ins. Co. v. Tritson, 7 Bosw., 427.) The defence was the defence of the defendants, who were the indemnitors, and they are concluded by the result, in the absence of fraud or collusion between the prosecuting party and him whom the defendants were bound to defend. (Douglass v. Howland, 24 Wend., 35.) There is no legal principle which sanctions the interposition of a defence in this action, on the ground of negligence, as claimed by the defendants.

It is insisted that the court erred in refusing to charge the jury as requested; that if what was claimed by the plaintiff, as a ratification in the letter of June 18, 1868, was made by Christy without full knowledge of all the facts, it was not in law a ratification. The letter referred to, directed the attorney to sell the property, and promised to pay any deficiency there might be upon the judgment. To make an unauthorized act. of an agent binding upon the principal, upon the ground of a subsequent ratification, such ratification must have been made by the principal with a full knowledge of all the facts affecting his rights. (Seymour v. Wyckoff, 10 N. Y., 213, 224; Brass v. Worth, 40 Barb., 648, 654.) The proposition contained in the request was a sound one, if the plaintiff relied solely on this letter as evidence of the ratification, or if it wras not covered by the charge already made. The plaintiff claims that other letters, received after the levy was made, contained and were evidence of the ratification; and as this request assumed that the letter named was the only one which contained evidence of the ratification, the request was propei'Iy refused.

As I understand, there is evidence in the case which tends to show that other letters were received by the plaintiff which might be considered as an approval of what had been done, and as showing a ratification by the defendants. It is, perhaps, a rational and fair presumption, that all of these were relied upon, by the plaintiff, as evidence of a ratification; and if *243such is the fact, then the request was too narrow and restricted in its character, provided the scope and tenor of the cl large properly covered the whole testimony relating to the subject. It becomes important, then, to inquire whether the charge was sufficiently comprehensive in this respect. The judge, after charging that if Tomlinson was directed by the defendants, by virtue of certain letters, to proceed and levy on the property and remove it, and assumed the defence, that then they would be liable; or if they authorized Tomlin-son to indemnity the sheriff in the taking of this property, as he did, that then they would be liable, proceeded to say: “ Or if after the property had been taken, after the action had been tried, and decided against the sheriff, they ratified what was done, knowing of the power which Mr. Tomlinson had assumed, to defend the action in their name, then they would be liable.” I think that this was not enough, and does not embrace the proposition presented. The judge speaks of a ratification without stating what is meant by it; and of “ knowledge of powers,” without in any way saying that the ratification must be made with full knowledge of the facts affecting the transaction. He left out a most material and important part, and omitted to state the principle upon which a ratification of prior acts is founded. This clearly did not cover the request made; and as the court refused to charge, except as was contained in the charge made, which did not embrace anything in regard to a ratification contained in the letters, I think there was error. There was, in fact, no portion of the charge which covered the question as to what was necessary to constitute a ratification; and although the plaintiff claimed a ratification from other letters besides the one especially named, he at the same time insisted that this, as well as the others, was a ratification, and in the absence of any directions to the jury as to any of them, the request was right and should have been granted. The defendants had a tight to an affirmative charge upon the proposition made.

The other requests to charge I am inclined to think were properly refused; but, inasmuch as a new trial must be *244granted for the error already stated, it is not necessary to discuss them.

Rew trial granted, with costs to abide the event.