This is an action on the case for the alleged negligence of the defendant, as an attorney at law, in regard to a debt left with him by the plaintiff for collection, against one Purrington. That the defendant was an attorney, that he was employed by the plaintiff to collect the debt of PurringfAn, and that the debt had not been paid, was admitted by the defendant; but he utterly denied all negligence on his part. It appeared, that the defendant, as such attorney, obtained two judgments, and took out two executions, on the plaintiff’s demands against Purrington, and that he took a note for the amount of both executions payable to himself or order, and a mortgage to secure the same, but that the executions had not been discharged. There was no evidence, that Purring-ton’s ability to pay had ever become less since the claims were left with the defendant for collection. The defendant contended, and prayed the court to instruct the jury, that the gist of a suit against an attorney for negligence was the solvency of the original debtor, when the claim was delivered to the attorney for collection, and the debtor’s subsequent insolvency ; and that the action could not be sustained on the ground of mere delay and nonfeasance, if the debtor was as able as ever to pay the debt. The defendant also prayed the court to instruct the jury, that if an attorney discharged a debt left with him for collection, with or without payment, or compromised it without the client’s leave, the only remedy against the attorney was by an action for money had and received; that if in any stage of the proceedings, before payment or discharge of the debt, the attorney delayed to proceed and collect, unless a failure of the debtor intervened, the only remedy of the client was to demand the evidences of the debt from the attorney, and, on refusal, to bring an action for the same; but that the only ground, on which this suit could be maintained, would be proof of the attorney’s negligence, by which and the subsequent inability or failure of the debtor, the debt had been lost.
But the court refused so to instruct the jury, and did instruct them that, though Purrington always had been able, and then
The ruling was, that, if the defendant, by gross negligence, in a matter he had undertaken to perform as an attorney, had embarrassed the collection of the plaintiff’s debt, and put it in such a situation, that the plaintiff could not so readily realize the amount of his claim, and the plaintiff’s debt was thereby rendered of less value, the plaintiff was entitled to recover damages of the defendant, though Purrington, the original debtor, always had been and was then able to pay the debt, which was left for collection by the plaintiff with the defendant.
The correctness of this ruling is too plain and manifest, upon the mere statement of it, to admit of any controversy. It is,.in truth, merely stating the common-elementary principle, that an attorney is answerable to his client for negligence in an action on the case.
It is no answer to the charge of negligence, for the attorney to say, that the original debtor is able to pay the debt. Nor is it any better answer to say, that an action for money had and received might have been brought against him, on the ground, that he had compromised the debt without the consent of the client, and had taken security to himself. The defendant, in fact, made the appropriate answer to the charge of negligence, which was, that he had been guilty of no negligence; but this defence was not sustained by the jury, who, by their verdict, have established the charge of negligence. Negligence on the part of the attorney undoubtedly
There was no exception taken to the amount of damages given by the jury, and no question was raised on that point. Besides the exceptions to the rulings of the court below, a motion was made, on the part of the defendant, in arrest of judgment, on the ground of the insufficiency of the declaration. The declaration is alleged to be defective, because no specific, particular act of negligence is set out. It is alleged, generally, that the defendant did, without the consent of the plaintiff, and contrary to his express directions, undertake to settle and adjust the plaintiff’s claims with Purrington, and did not follow the instruction of the plaintiff, but so carelessly and negligently conducted the trust, that the debt has never been paid or collected, &c., &c.
There is undoubtedly a want of particularity in the declaration, which might perhaps have been fatal on demurrer; but which" is as undoubtedly cured by the verdict. In the case of Gilbert v. Williams, 8 Mass. 51, it was decided, that an attorney, who disobeys the lawful instructions of his client, is responsible for any loss which may ensue in consequence. In the present case, the declaration alleges,- that the defendant “did not follow the instruction of the plaintiff, but so carelessly and negligently conducted said trust, that the said debt has never been paid or collected.” This certainly sets out a cause of action, though it may be set out defectively. It is a very familiar principle, that a declaration, Avhich sets out a cause of action defectively, is cured by a verdict. It is a fair presumption, after verdict, that what was defective in the declaration was proved at the trial. It is well settled, that a want of particularity, which is the objection to this declaration, is cured by the verdict. It is quite plain, that the defects in this declaration are such as come within this principle.
Exceptions and motion in arrest overruled..