Wilson v. Coffin

Court: Massachusetts Supreme Judicial Court
Date filed: 1848-10-15
Citations: 56 Mass. 316
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Lead Opinion
Fletcher, J.

But the court refused so to instruct the jury, and did instruct them that, though Purrington always had been able, and then

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was as able as ever, to satisfy valid debts, to the amount of the debt left by the plaintiff with the defendant for collection ; yet, if the defendant, by gross negligence, in a matter which he had undertaken to perform as attorney, had embarrassed the collection of the plaintiff’s debt, and had 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 of the defendant in damages. Upon exceptions by the defendant to this ruling in the court of common pleas, the case comes to this court'.

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

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furnishes a ground of action upon which the client may proceed ; though the debtor is still able to pay the debt, and though the attorney may have also rendered himself liable for the debt, in an action for money had and received.

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..