Abbott and Others v. Smith, 4 Ind. 452

Roache, J. Foreign attachment by Smith against the plaintiffs in error. Property of the plaintiffs, who were non-residents, was regularly attached. A declaration was filed, containing a count on an account stated, and the money counts. The defendants below appeared and plead the general issue, and notice, of set-off. By agreement of parties, the case was tried by the Court, which found for the plaintiff, and rendered a judgment for 1,537 dollars and 89 cents.

In support of his declaration, Smith introduced an account stated by Abbott and Brothers, under date of June 30, 1844, exhibiting a series of transactions between the parties, and showing a balance due the former, at that date, of 1,114 dollars and 42 cents. The defendants proved that in 1840, they placed in the hands of Smith, who resided at Louisville, Kentucky, four notes on Branham and Todd, amounting, with their interest, to 2,629 dollars and 38 cents, for collection by him as an attorney.

The latter immediately forwarded the notes to Marshall and Cushing, attorneys resident at Madison, Indiana, in the vicinity of which place Branham, and Todd were doing business. In March, 1842, Marshall and Cushing obtained a judgment on three of the notes for 1,377 dollars and 93 cents. On the third of October, 1843, Cushing received from Branham and Todd railroad scrip, treasury warrants, and some real estate, for which he gave them up the fourth note, which had not been included in the judgment, and entered a credit for the balance on the judgment, for 1,012 dollars and 19 cents.

The receipt was signed by Cushing, as attorney of Abbott and Brothers. Up to this period, it does not appear that Abbott and Brothers were apprised of the employment of Marshall and Cushing. Shortly afterwards, in a correspondence between them and Smith, they expressed dissatisfaction with the management of the business, and in February, 1845, took it out of the hands of Marshall and Cushing, and transferred it to Bright and Dunn. The latter got a portion, but not all of the property taken by Cushing on the judgment against Branham and Todd.

A portion of the real estate was sold and the proceeds accounted for, and another portion conveyed to Abbott and Brothers, who still own it. No attempt is shown to have been made by the plaintiffs in error to avoid the settlement or compromise, but all their efforts, up to 1846, seem to have been directed towards making the most out of the property taken on the compromise; and their changes of attorneys had that object merely in view. In 1846, Abbott and Brothers directed Stevens, their attorney and agent, to take charge of the business and close it up.

Bright and Dunn accounted to the latter for what had come to their hands. Stevens, according to their directions, called on Smith, and demanded of him the Branham and Todd notes, or the money, if collected. Smith gave him 240 dollars in small notes, which he had received through Cushing on the Branham and Todd notes, and, being all that had ever come into his hands, denied any further liability. S. C. Stevens, for the plaintiffs. J. Sullivan, for the defendapE On this state of facts, the Court found for Smith for the amount of the account stated, with interest, and disallowed the claim set up as a set-off.

No question is raised as to the correctness of the claim of Smith; but the whole controversy arises as to the demand attempted to be sustained by Abbott and Brothers as a set-off. It was the duty of Smith, on receiving the Branham and Todd notes, to use diligence and skill in their collection. If he employed other attorneys under him, without authority from his clients, he was responsible for their acts. If through deficiency of skill or diligence either of himself or of the attorneys employed by him, his client should suffer, he would be liable to an action.

In such case the claim would not partake of the nature of a debt; but would be a claim for damages for professional incapacity or negligence; it would be an action sounding in unliquidated damages, which could only be ascertained by the finding of a jury. Such a claim is not a proper subject of set-off See R. S. 1843, p. 708, s. 204. Per Curiam. The judgment is affirmed, with 1 per cent, damages and costs.