MARDIS' Adr's. v. SHACKLEFORD, 4 Ala. 493

COLLIER, C. J. It is supposed by the counsel of the plaintiffs in error that the demurrer should have been sustained to the third count of the declaration; because, as he insists, it is both in assumpsit and case. This argument cannot be maintained. The count alledges, that the intestate, as an Attorney at Law, undertook to collect sundry notes and accounts, and concludes that he negligently failed to perform his undertaking, &c.

True, in failing to perform his promise, he is charged with “ contriving to deceive and defraud;” but these words are mere expletives, and add neither force or beauty to the sentence in which they are found. Mr. Chitty furnishes the form of a declaration in a case similar to the present, which states a breach as follows: “Yet the said C. D. well knowing the premises, but not regarding his duty as such Attorney, nor his said promise, &c., but contriving, and craftily and subtly intending, wrongfully and unjustly, to delay and injure the said A.

B. and to deprive him of the means and opportunity of recovering the said sum of money, did not, nor would, &c. but on the contrary thereof, he, the said C. D. so carelessly, negligently and improperly behaved and conducted himself, in, &c. that by and through the carelessness, negligence, delay and improper conduct of the said C. DN &c. [3 Chitty’s Plead. 166.] The terms employed in the form from which we quote are no less potent in alledgin^ impropriety of intention and conduct on the part of the Attorney, than are the words used in the declaration in the case before us.

And although in both, terms wholly unnecessary are inserted, they cannot change the character of the action, or affect the sufficiency of the pleading. The most important questions in the cause arise out of the bill of exceptions and relate — 1. To the admission of the evidence adduced by the plaintiff below. 2. To the charges given, or refused to be given to the jury. 1. We will consider the objections to the testimony in the order in which they are stated in the bill of exceptions.

It may be premised, that at least some one or more of the counts in the declaration are adapted to the admission of the evidence objected to, if in itself it was admissible. First — In respect to the first objection, it is not well taken. The memoranda of the intestate, as it is called, is nothing more than a receipt for promissory notes placed in his hands by the plaintiff, which he was to apply to the payment of the debts owing by a late mercantile partnership, of which the plaintiff was a member.

If the intestate collected any of these notes, which he failed to appropriate according to the terms of his receipt, the plaintiff might reco ver the amount in an action for money had and received; the more especially as it does not appear, that the intestate came under a specific engagement to the creditors of the partnership. Second — In the Exr’s of Smedes v. Elmendorf, [3 Johns.

Rep. 185,] it was held, that when evidence of a debt past due i$ left with an Attorney, who gives a general receipt for it, it will be presumed that he received it for collection; and in an action against him for negligence, by which the debt was lost, it is incumbent on him to show that he received it specially and for some other purpose.

The second memoranda of notes belonging to the plaintiff, is not a formal receipt, yet prima, facie, it was intended as an acknowledgement that the notes particularly described in it, were placed in the intestate’s hands as an Attorney at Law ; and the legal effect of the paper is an undertaking by the intestate, that he will use due diligence to collect them of the debtors. In this view it was properly allowed to be read to the jury. Third — The question raised by this exception is, whether the testimony admitted should have been rejected for irrelevancy.

As all intendments are favorable to the decision of the primary Court, it is incumbent on the party objecting to the admission of evidence, to show affirmatively the existence of error. [Thomas v. Tanner, 6 Monr. Rep. 52; Snowden v. Warder, 3 Rawle’s Rep. 101.] Hence it is said, if the Court can suppose any possible state of facts to which the testimony admitted might have been relevant, it shall be presumed that such state of facts existed; care should therefore be taken, in framing the bill of exceptions, to exclude such presumption. [3 Phil. Ev. C. & Id’s notes, 793; Hodges v. Crutcher, 1 J. J. Marsh.

Rep. 504.] In the case before ns the bill excludes any presumption on this point favorable to the admission of the evidence, by an express statement, that it recites all the proof adduced by the plaintiff. * The Court always protect the jury from the admission of irrelevant testimony, by excluding it on objection, in the same manner as it rejects other incompetent proof. Hart v. Newland, [3 Hawk’s Rep, 122; Winlock v. Hardy, 4 Litt.

Rep. 272.] If evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence may afterwards be given, in connection with which it would become competent. If it would be relevant in conjunction with other facts, it should be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts at a proper time. [Weidler v. The Farmers’ Bank of Lancaster, 11 Sergt. & R. Rep. 134; see also Clendenning & Bulkeley v. Ross, 3 Stew. & P. Rep. 267; Gee’s Adm’r v. Williamson, 1 Porter’s Rep. 320 ; Wiswall v.

Ross & Earle, 4 Porter’s Rep. 330; Innerarity v. Byrne, 8 Porter’s Rep. 176; Jenkins v. Noel, 3 Stew. Rep. 60; 2 Phil. Ev. C. & Id’s notes, 428.] The paper to which this exception refers, does not appear in itself, or by any auxiliary proof proposed, to relate to the professional undertaking by the intestate with plaintiff, in the performance of which negligence is charged; nor can it be inferred from the evidence recited in the record, that it had any connection with that transaction.

What is said in the paper in respect to the “ notes sent to Philpot for Smith’s horse,” unless explained, is wholly unintelligible; and the acknowledgement of the receipt of a note by the intestate “ to bring suit on,” does not appear to have been made in favor of the plaintiff, and cannot, in the absence of all proof, be so intended. The possession of the paper might warrant the inference that the plaintiff was entitled to receive the proceeds of the note when collected; but without additional proof it will not show that he was the person with whom the contract to collect was made.

Consequently the' evidence was inadmissible under the counts which charge a contract between the plaintiff and intestate, by which the latter undertook to perform services for him, as an Attorney at Law. So much of the writing as relates to the notes of the Actons and Bailey is irrelevant testimony under either count of the declaration ; because, thus far, it does not tend to prove any fact put in issue.

But so far as it respects the acknowledgement that “F. &'Hardin’s note” was left with the intestate to sue on, the paper might have been admissible under the count for money had and received, as a link in the chain of evidence, necessary to show the amount of the note described in it, or the plaintiff’s title to the money collected by the intestate upon it. True, it was insufficient in itself to entitle the plaintiff to recover, yet this is no objection to it; for evidence that is pertinent, it is said, cannot be rejected because it may be necessary to adduce other proof in connection. [2 Phil. Ev.

C. & H’s notes, 429.] The plaintiff might have shown the amount of the note by the receipt, and then have proved an admission that it was collected by the intestate, and a direct promise by him to pay the plaintiff. The fact that such additional evidence was not offered, will not make a decision erroneous, which was legal when made. The regular course, under such circumstances, is to call the attention of the Court to the defect of proof, by asking an instruction to the jury upon the application of the testimony and its legal .effect.

Had the objection been made to so much of the writing as was inadmissible, it should have been sustained, but upon a genera) objection, the Court was not bound to distinguish between the legal and illegal evidence; but might admit all. [Litchfield v. Falconer, 2 Ala. Rep. N. S. 280.] Fourth. — There are many adjudicated cases which maintain, that where the subscribing witness to a bond is dead, proof of his hand-writing is evidence of its execution; but it is quite as regular, according to the course of decision at this day, to admit the bond upon proof of the hand-writing of the obligor.

Such evidence has been repeatedly recognized to be admissible and prima facie sufficient. Fifth. — The letter of the intestate, informing the plaintiff that he had associated with him Mr. Moody, as a partner in the practice of law. and that the latter would attend to the collection of noies &c. of the plaintiff, which had been placed in his hands, was clearly admissible. And the receipts of Moody to the debtors for money paid to him, were evidence to charge the intestate; because the letter showed that he had the intestate’s authority to receive it.

The plaintiff’ was under no obligation to look to Moody for the money collected by him. unless he substituted him as his attorney, or after the formation of the partnership, recognized Mardis and Moody as such; in which latter case, it might be necessary to proceed against Moody as surviving partner, for money received by him, if it had not been paid over to Mardis. Sixth. — The statute only requires that the claims against the estates of deceased persons, shall be presented to the executor or administrator within eighteen months, &c.

Under this enactment, it has never been considered necessary to present the evidence by which the demand is sustained; but the mere exhibition of the account which the creditor claims to be due him from the estate, is quite sufficient. The evidence of the identity of the account presented to one of the administrators, and that adduced at the trial, must be considered as admissible. The circumstances which induced the belief of their identity, are stated by the witness in the deposition objected to; and they are such as authorized the paper to be submitted to the jury.

Positive evidence to the point is not indispensable. It is not insisted that the account should have been presented to both the administrators; nor, indeed, could such an argument be successfully urged. In Acre v. Ross administrator, [3 Stew’t. Rep. 288,] it was determined, that the presentment of a claim to one of two representatives of an estate, was a notice to both.

The declaration of the administrator to whom the account was presented, that he would make good so much of the claim as had not been paid, proved nothing in an action against the administrators, as such ; and as it coirld not prejudice, its admission was not a fatal error. 2. Several of the counts of the declaration charge the intestate with negligence asan Attorney, in failing to take the proper steps to collect notes, &c., placed in his hands, and a consequent loss to the plaintiff.

An Attorney at Law is only liable to his client for gross negligence in the performance of his professional duties; and that is a question of fact to be determined by the jury. [Evans v. Watrous, 2 Porter’s Rep. 205; 1 Saund. Plead. and Ev. 194; 2 Starkie’s Ev. 134.] The first inquiry to be made on this branch of the case is, what is sufficient evidence of negligence ? The proof of negligence, it is said, must always vary, according to the statement of the facts of the plaintiff’s case in his declaration; [1 Saund.

Plead. & Ev. 195; 2 Starkie’s Ev. 134,] but it is a fact which must be proved by him in order to make out the defendant’s liability. [2 Starkie’s Ev. 133; 1 Saund. Plead. and Ev. 194.] In the case before us, the Judge, in effect, instructed the jury, that the production of the receipts made by the intestate, was sufficient to warrant themin findingaverdict against defendant; unless it was shown, that in obedience to intestate’s undertaking, he had brought suit upon the claims in his hands, and used the proper legal means for their collection.

And upon the prayer of the defendants, the Court refused to charge the jury, “ that the production of receipts of intestate with proof that the persons named therein were solvent, in the absence of all other proof in regard to liability upon those receipts, is not sufficient to entitle the plaintiff to recover'thereupon.” The receipts of the intestate merely evidenced that demands such as are described in them, were placed in his hands ; and the law implied a promise on his part that he would employ due diligence in their collection.

This implied undertaking was, however, subject to modification by instructions from the client. But as the instruction to the jury was given upon the hypothesis, that the intestate was not controlled in the performance of his duties by the plaintiff, we will, for the purpose of testing its correctness, consider such to have been the fact. It is difficult to conceive by what course of reasoning,the intestate’s neglect was deducible from the mere production of his receipts. These, we have seen, proved nothing more than the fact of retainer.

To establish negligfence prima facie, it should have been shown that the intestate was awar© of the residence of the debtors, or upon due inquiry might have been informed on this point. Then, the great length of time which had elapsed since the receipts were given, in the absence of all countervailing proof, would warrant the inference that the intestate had omitted to use due diligence.

If any of the debtors resided beyond his reach, and he desired to relieve himself from the responsibility of taking legal steps against them, or if h© had collected, or failed to collect, the demands against them, he should have informed the plaintiff. The failure to give information would authorize the implication that the intestate was willing to continue his professional engagement, and that he had collected, or neglected to collect, the debts in his hands.

The measure of the damages to which an attorney is liable, for the failure to perform his undertaking with his client, is the loss which has resulted from his negligence. [2 Starkie. Ev. 135 ; 1 Saund. Plead, and Ev. 196.] But the question, on whom does the onus lie to prove the damages for apglecting to collect a debt which is liquidated by note, or whether the prima facie inference is not, that the damages sustained are commensurate with the amount of the note, has been sometimes seriously mooted. In Bourne v. Diggles, [2 Chit.

Rep. 311,] it was said that the defendant must show that diligence would have been ineffectual. [But see Wilcox et al. v. Plummer’s Ex’ors. 4 Pet. Rep. 172; St. John v. O’Connell, 7 Porter’s Rep. 466; The Bank of Mobile v. Huggins, Adm’r. 3 Ala. Rep. N. S. 206 ] What may be the rule of law on this point, it is un-necessary to determine, as the plaintiff undertook to prove the solvency of the debtors, and will doubtless be prepared upon another trial to adduce the same evidence.

From this view of the law, it follows that the court erred in the instruction we have noticed, as well as in the refusal to charge as prayed. By giving his receipts for the receipts of third persons, for notes, &c. belonging to the plaintiff, the natural conclusion is, that the intestate undertook to supervise the collection of the notes, &e. and to make settlements with the persons who held them; and if he neglected to perform that duty, to the prejudice of the plaintiff, he would be chargeable.

Whether the declaration is adapted to such a cause of action, may perhaps be questioned; but as this point is not raised upon the record, we will not undertake its solution. If the intestate collected money in his professional character for the plaintiff, an action would not lie against his administrators for its recovery, until after demand made.

But, as remarked by the circuit judge, the direction by the plaintiff and assent by the intestate, to pay over the sums received, to the creditors of the former, dispensed with a formal demand, and the failure thus to appropriate the money, entitled the plaintiff to his action. [Taylor v. Bates, 5 Cow. Rep. 376; Ferguson’s case, 6 Cow. Rep. 596; Rathbun v. Ingalls, 7 Wend. Rep. 320; Taylor v. Armisted, 3 Call’s Rep. 200; Staples v. Staples, 4 Greenl.

Rep. 533.] In respect to the statute of limitations, it may be regarded as settled law, that it began to run from the time the intestate-was chargeable with negligence; for then a right of action accrued in favor of the plaintiff. For the purpose of ascertaining that time, we must again recur to the contract of the parties. Supposing it to have been what the charge to the jury assumed, it imposed upon the intestate the duty of bringing suits upon the notes and accounts which he received, to the first court to which, with reasonable diligence, they could be brought.

The failure, thus to proceed, without an excuse therefor, would have been such negligence as made him liable to an action at the suit of the plaintiff. The question, at what time the statute of limitations begins to run in favor of an attorney who was charged with negligence, was well considered in Wilcox et al. v. Plummer’s Ex’rs. [4 Pet. Rep. 172]. In that case an action of assumpsit was instituted against the testator of the defendants, on the 27th of January, 1825, and upon his death revived against his executors.

It was proved that a promissory note was placed in the testator’s hands for collection, by the plaintiffs, on which he brought a suit on the 7th February, 1820, against the maker, but neglected to sue the indorser. The maker proved insolvent; and then, on the 8th February, 1821, he issued a writ against the indorser, but committed a fatal misnomer of the plaintiffs, and a j udgment of nonsuit was rendered against them. Before the plaintiffs were nonsuited, an action against the in-dorser was barred by limitation.

The declaration contained two counts : the one laying the breach in not suing until the note became barred; the other laying the breach in the mistake in the plaintiff’s name; but both placing the damages upon the barring of the note by the act of limitations. The Court say, “ The only question in the case is, whether the statute runs from the time the action accrued, or from the time that the damage is developed or becomes definite. And this we -hardly feel at liberty to treat as an open question.

The ground of the action here, is to act diligently and skilfully; and both the contract and the breach of it, admit of a definite assignment of date. When might this action have been instituted, is the question ; for from that time the statute must run. When the attorney was chargeable with negligence, or unskil-fulness, his contract was violated, and the action might have been sustained.

Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict.

If so, it is clear the damage is not the cause of action.” The Court then conclude, “that on the first count in the declaration, the cause of action arose at the time when the attorney ought to have sued the indorser, which was in a reasonable time after the note was received for collection, or, at all events, after the failure to collect the money from the maker.

And that, on the second count, his cause of action arose at the time of committing the blunder in issuing the writ in the names of the wrong plaintiffs.” There was no necessity for the Court to be more explicit in the conclusion, as it was obvious, from the proof, that the statute pleaded operated a bar to a recovery upon either count. [See also, Benton v. Craig, 2 Missouri Rep. 198. Shff. of Norwich v. Bradshaw, 1 Cro. Eliz. 53. 2 Saund. on Plead, and Ev. 645, and cases there cited.

In the case at bar, the'Court very properly refused to charge the jury that the statute of limitations began to run from the date of the receipts; but in charging that it did not begin to run until the intestate had a reasonable time to collect the notes, &c. and from the time his responsibility commenced, the Court misapprehended the law.

It is true that the statute began to operate as soon as the intestate was liable to an action for negligence, but that liability we have seen attached as soon as he failed to perform his contract, that is, upon a neglect to sue in a-reasonable time; which must have happened before he could have collected the notes, &c. according to the regular course of proceeding at law.

Whether the statute really did perfect a bar before the suit was instituted, or whether there is any-'■thlng j,n tl\e record to relieve the case from its influence, are questibás u^hich are not presented for our decision. ■ The jbiJhof exceptions is drawn out to an unnecessary length, and is ‘caícíulated, by its prolixity, to embarrass rather than aid our examination of the points made, We mention this, as a suggestion to counsel, of the propriety of only placing upon the ..record such matters as are essential to a decision of the case. It remains but to add, the judgment is reversed and the cause remanded.