Amos Morrill v. Robert H. Graham, 27 Tex. 646

Moore, J. This was a suit by Graham, the appellee, to recover the amount of a note and interest which the defendant in the court below, Morrill, as an attorney at law, was employed to collect, and which it is alleged he failed to do through gross ignorance and mismanagement. It is also charged in the petition, that Morrill, by an express promise and undertaking to this effect, bound himself to pay Graham the amount of his debt upon his ultimate failure to collect it. It is quite evident from an inspection of the charge of the court, that the verdict of the jury did not rest upon this latter ground.

We need, therefore, at present, only say, that such a contract, if supported by a sufficient consideration, is unquestionably valid and binding, and that limitation would not commence running against it until the final termination of the proceedings advised and instituted by the attorney, for the collection of the debt for which he has thus bound himself. The mere confidence, however, in the advice of the attorney, or acquiescence in the course he wished to pursue in the matter would not be sufficient to support an action upon the promise of the attorney, to pay the debt, if he should fail to collect it.

But it would be otherwise, if in consideration of such promise the client should agree not to withdraw the business from the hands of the attorney, or consent, on the faith of such promise, to waive a proceeding which otherwise he would have taken, and by reason of which his debt would have been secured.

By the charge of the court the jury were instructed that the claim placed by Graham in Morrill’s hands for collection, being against an estate of a deceased person, should have been presented to the administrator for allowance, within twelve months from the grant of letters of administration, and if it was not done by Morrill’s advice he was guilty of such palpable ignorance of the law as rendered him responsible for the debt, if in consequence thereof it had been lost.

There is no question that art attorney is responsible for all such damage as his clients may sustain by reason of his gross ignorance of the profession which he professes to practice and understand, or, in other words, for the want of proper knowledge of all matters of law in common use, or such plain and obvious principles as every lawyer is presumed to understand.

We can not agree with the court below, however, in holding that the error into which the appellant, Morrill, fell, in the suit instituted by him to collect the appellee’s debt, manifested such a gross want of legal knowledge and professional skill as to render him responsible for the debt. It is true, the statute required claims against estates to be presented to the administrator before suits could be instituted upon them.

The debt in question was secured by a mortgage, and although it is now plain that such claims must be presented to the administrator, yet, until the determination in this court of the suit brought by the appellant for the recovery of this Very debt of appellee’s, it was an open and controverted point with many members of the bar, whether they were embraced by the statute. The respective rights and liabilities of mortgagor and mortgagee, and the true nature of the contract of mortgage had not then been settled by the adjudications of our courts.

In considering this question, we must remember the unsettled state of the judicial as well as professional mind upon many questions about which no one now entertains the slightest doubt, and also, the difficulty, nay, often the absolute impossibility of access by attorneys to the ordinary sources of information.

The statute by which the appellant should have been guided, as has often been held by this court, does not apply without exception to all classes of claims for money; and we are of opinion that appellant, in supposing appellee’s debt to be also an exception to the general rule, was not so grossly and obviously ignorant of the law, as to be held chargeable for its payment on his failure to collect it. For the error in the instruction to the jury, the judgment is reversed and the cause remanded. Reversed and remanded..