Obrázky stránek

criminal cases as well as civil.17 But an exception to the rule that notice to the attorney is imputable to the client has been held to exist, "where the client, acting honestly and in good faith upon information obtained from his attorney, institutes and prosecutes criminal proceedings against another," without knowledge of duress used in obtaining a confession from the accused, knowledge which the attorney did have.18

It is assumed in the foregoing cases

ing a client bound by knowledge of his attorney, employed to prosecute claims against a county, of a repudiation of the claims by the county, so as to start the Statute of Limitation running.

Bradford v. Malone (1908) 49 Tex. Civ. App. 440, 130 S. W. 1013, holding a client chargeable with the knowledge of his attorney that a judgment had been rendered against such client.

It is stated in Butler v. Morse (1891) 66 N. H. 429, 23 Atl. 90, that "notice to the attorney, whether actual or implied, is considered notice to the client, and binds him, when the notice is in the course of the transaction in which the attorney is acting for him."

[blocks in formation]

Missouri, K. & T. R. Co. v. Bacon (1904) Tex. Civ. App. - 80 S. W. 572, and Missouri, K. & T. R. Co. v. Wood (1913) Tex. Civ. App. 152 S. W. 487, holding defendants chargeable with the knowledge of their attorneys that an interest in the claim in suit had been assigned to certain attorneys.

In Dowdy v. Furtner (1917) Tex. Civ. App., 198 S. W. 647, the court, in refusing to charge a mortgagee with the knowledge of an attorney employed to pass upon the title of the mortgagor, of an escrow agreement in which he had been the depositary of the mortgagor, and another of deeds executed in making an exchange of property, states that there is no foundation whatever for the claim that the knowledge of the attorney as to the escrow agreement became the knowledge of the mortgagee, when he afterwards employed him to pass upon the title to the land. The court adds: "The fact that the attorney pronounced the title regular was sufficient to cause appellee to be satisfied therewith, and it was not shown that [the attorney] ever talked with appel

[4 A.L.R.

that the knowledge sought to be imputed related to the subject-matter of the employment, and with this tion it seems clear therefrom that, assumpaccording to all cases, a client is chargeable with knowledge acquired by his attorney in transacting the business in which he was employed. According to some courts, the knowledge which will be imputed to the client has been thus limited; if the knowledge is not received in the course of the employment,19 or in the lee and communicated to her any facts in connection with the deed to the land, except in so far as his representation that the deed conveyed title to the land."

Tisdale v. The H. W. Almy (1882) 4 Haw. 503. Notice to an attorney of a judgment is notice to the client.

McCauley v. Butler (1902) 1 Ont. Week. Rep. 72, holding notice to a defendant's solicitor of a claim for costs, notice to the defendant.

That notice to the attorney is notice to the client seems to have been the theory in the mind of the court, in Equitable Securities Co. v. Green (1901) 113 Ga. 1013, 39 S. E. 434; but there is no clear holding on this point. See infra, note 34.

17 Barnes v. Com. (1918) 179 Ky. 725, 201 S. W. 318, charging a defendant with the knowledge of his attorney, of a separation of the jury.

See also People v. Duncan (1908) 8 Cal. App. 186, 96 Pac. 414, supra, note 16.

18 Penney v. Johnson (1908) 142 III. App. 634.

19 Neilson v. Weber (1901) 107 Tenn. 161, 64 S. W. 20, holding a purchaser of the interest of an heir in the ancestor's estate not chargeable with knowledge of debts, possessed by his attorney.

Pacific Mfg. Co. v. Brown (1894) 8 Wash. 347, 36 Pac. 273, holding a materialman not chargeable with the knowledge of his attorney, who drew the lien notice and prosecuted his suit to foreclose, of a mortgage foreclosure suit which he was conducting against the property in favor of another client.

A mortgagee who has brought an action upon the note secured by his mortgage, which instruments were executed by an attorney in fact, is not, in such action, chargeable with knowledge of the identity of the power of

same transaction,20 the client is not affected thereby.

But this has not always been held, and a client has been held chargeable with knowledge of an attorney not derived in the course of his employment. For example, a creditor who employed his debtor's attorney to levy upon land, the legal title to which was in the debtor, but the equitable title to which was in another, was held chargeable with the attorney's knowledge of the equitable title.21 This decision is based, in part at least, upon a failure of the creditor to inquire as to the true state of the title. The court states: "But here, as in most cases, it is certain the creditor, by the slightest inquiry in the proper quarter, and in the quarter where one would naturally look, might have learned the true state of the title. The debtor's attorney, who held the possession of the estate for his use, knew of the claim of the cestui que trust, and the ground of it. Any inquiry of him would have led at once to the discovery of the real facts in the case. This was not done. But he was adopted as the attorney of the creditor to make the levy, and he was taken, of course, cum onere, that is, with his present knowledge of the title. That he was bound to communicate to the creditors, as much as if he had originally received it while acting as the defendants' agent." The court, however, seems to qualify the rule somewhat, by adding that, if the knowledge attorney, because of the knowledge of a lawyer employed at the time the mortgage and note were given, such lawyer being no longer employed by the mortgagee. Cartwright v. Everett (1888) 7 Haw. 216.

See further the cases in III. b and c, infra.

20 Howard Ins. Co. v. Halsey (1853) 8 N. Y. 271, 59 Am. Dec. 478, holding the knowledge of an attorney employed to foreclose a mortgage, of a conveyance by the mortgagor of a part of the premises, not imputable to the mortgagees in a subsequent transaction after the foreclosure suit had been dropped, in which the mortgagees released a part of the premises from the lien of the mortgage.

as to the equitable title still remained in the mind of the attorney, it did not need to be repeated to become notice to the creditor. In a subsequent Vermont case,22 the court, in holding a client chargeable with knowledge of a trust possessed by his attorney, states that "if this knowledge comes to the attorney or agent while acting in another and different transaction, the client and principal will be affected with notice." It is of course true, under the Vermont rule, that if the knowledge was acquired in transacting the business of the principal, or was then acted upon by the attorney, the principal is chargeable; thus, an attaching creditor has been held chargeable with the knowledge of its attorney of a prior deed by its debtor, where the attorney made the deed and saw the record thereof, and, as attorney for the creditor, examined the record thereof with a view to bringing the attachment suit.23

Questions connected with knowledge not acquired in the course of the employment most frequently arise in connection with knowledge acquired prior to the agency or knowledge, in transacting the business of another client, and these questions are discussed in subsequent subdivisions of this note. According to the majority of courts, as hereinafter shown, the knowledge which will be imputed is not limited to knowledge acquired in the course of the employment, but extends to previously acquired knowledge, if such

But see Constant v. University of Rochester, infra, note 72.

Tex. Civ.

Ives v. Culton (1917) App., 197 S. W. 619, holding a judgment creditor not chargeable with the knowledge of an attorney, derived in another transaction, of an unrecorded conveyance of the property of the judgment debtor.

Bulpett v. Sturges (1870) 22 L. T. N. S. (Eng.) 739, 18 Week. Rep. 796. 21 Hart v. Farmers & M. Bank (1860) 33 Vt. 252.

22 Abell v. Howe (1871) 43 Vt. 403. 23 Vermont Min. & Quarrying Co. v. Windham County Bank (1872) 44 Vt. 489, 3 Mor. Min. Rep. 312.

knowledge is present to the mind of the attorney when acting for the client.

b. Knowledge not relating to the subjectmatter of employment.

When the knowledge does not relate to the subject-matter of the employment, the client is not chargeable therewith. In one case,25 after admitting the general proposition that notice to the attorney is notice to the client, the court continues: "But it by no means follows that because the attorney is engaged in a particular suit that notice to him in reference to a cause or proceeding with which he has nothing to do, and over which he has no authority or control, constitutes notice to his client." It has been held that a judgment creditor of a bankrupt, whose claim was not filed

24 In Wyllie v. Pollen (1863) 3 De G. J. & S. 596, 46 Eng. Reprint, 767, 2 New Reports, 500, 32 L. J. Ch. N. S. 782, 9 L. T. N. S. 71, 11 Week. Rep. 1081, the court expresses an opinion that where the solicitor of a mortgagor was intrusted by the solicitor of persons who were taking a transfer of the mortgage, with the duty of obtaining the execution by the mortgagor of the transfer, such solicitor was not the solicitor of the transferees in such a way as to attract the operation of the doctrine of constructive notice, but states that, assuming that such solicitor was the solicitor of the transferees, the transferees were not chargeable with such solicitor's knowledge of a judgment against the mortgagor, since the existence of the judgment debt was immaterial to the transaction, and consequently no duty devolved upon the solicitor to divulge its existence to the transferees. It was accordingly held in this case that the transeferees were not chargeable with notice, so as to postpone a further charge made by them upon the mortgaged property, through other solicitors, to the lien of the judgment.

Lord Chelmsford in Eyre v. Burmester (1862) 10 H. L. Cas. 90, 11 Eng. Reprint, 959, speaking of the general rule that knowledge of a solicitor is imputed to the client, states: "But I am not aware that this imputed knowledge has ever been extended to matters which have no reference to rights created or affected by the trans

[4 A.L.R.

in the bankruptcy proceedings, is not chargeable with notice of the proceedings because of the knowledge of the attorney who represented him in obtaining the judgment, but who had no authority to represent him in the bankruptcy proceedings, and is not, therefore, barred by the bankrupt's discharge, within the meaning of the provision of § 17 of the Bankruptcy Statute of 1898 (30 Stat. at L. 550, chap. 541, Comp. Stat. § 9601, 1 Fed. Stat. Anno. 2d ed. p. 708) that "a discharge in bankruptcy shall release a bankrupt from all his provable debts except such as .. (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." 26 It is stated by the South action, but which merely relate to the motives and objects of the parties, or to the consideration upon which the matter in hand is founded."

25 Parish v. Hedges (1909) 34 App. D. C. 21, holding notice by a creditor of a decedent's estate, to attorneys who are prosecuting a claim of the estate against the Federal government, but who have nothing to do with matters relating to the estate in the probate court, is not notice to the executrix, within the meaning of a statutory provision that no executor or administrator who shall pay out assets of the estate after one year from the date of his letter shall be answerable for any claim of which "he had no knowledge or notice by an exhibition of the claim, legally authenticated."

In Larzelere v. Starkweather (1878) 38 Mich. 96, there was held to be no evidence that the attorney whose knowledge was sought to be imputed to another was the attorney of such other, at least, none that he was the attorney in the particular transaction in which notice was sought to be imputed; hence the imputation was denied.

26 Strickland v. Capital City Mills (1906) 74 S. C. 16, 7 L.R.A. (N.S.) 426, 54 S. E. 220. The attorney was informed of the bankruptcy proceedings, and was present at the first meeting of the bankrupt creditors. He testified that he was present merely as a spectator, and did not in any way partici pate in the meeting, and had no au

Carolina court that "there is no doubt that the general rule is that notice to the attorney is notice to the client, but the knowledge of the attorney must be acquired while acting for the principal, and the information must relate to a matter within the scope of his agency, the theory of the law being that the agent is presumed to have communicated to his principal knowledge which it was his duty to have communicated, and which it is reasonable to suppose he did actually communicate."26 It has been held that notice to an attorney who defended a suit, of a general assignment of the thority to represent the judgment creditor in the bankruptcy court.

27 Chicago Sugar Ref. Co. v. Jackson Brewing Co. (1898) - Tenn., 48 S. W. 275, holding notice to the attorney not notice to the judgment debtor so as to render an attachment a lien inferior to the assignment.

It is stated obiter in Daniels V. Pratt (1880) 6 Lea (Tenn.) 443, that, "in general, notice to an attorney expressly employed to defend the action would not be notice to his client of the assignment of the judgment." The court further states with reference to the facts of this particular case, which involved notice to the attorney of a railroad company, that the question might depend largely upon the nature of the relation between the railroad company and the attorney, as to the duties required of the attorney by the course of business between them, or by the contract of retainer.

28 Knowledge of an improperly recorded mortgage on certain property, possessed by an attorney who "made" (whatever that expression may mean) a writ of attachment for a creditor, but who is stated not to have been the agent of the creditor in the attachment of the property, is held not imputable to the creditor in Tucker v. Tilton (1875) 55 N. H. 223.

In Saffron Walden Second Ben. Bldg. Soc. v. Rayner (1880) L. R. 14 Ch. Div. (Eng.) 406, the court, in holding that notice to solicitors or trustees of a mortgage of a reversionary share in the testator's estate was not notice to the trustee, states: "I am prepared, therefore, to say that, before a notice of this kind of a charge upon the property can be of the slightest

judgment obtained therein, is not notice to the client.27

c. Limited employment.

In case of a limited employment it has been held that knowledge of the attorney, beyond the scope of the employment, is not imputable to the client.28 Thus, knowledge of an attorney, employed by a prospective purchaser of property to examine "an abstract of title and, from that," give the client an opinion as to its sufficiency, that a suit in which it was attempted to establish a lien on the property was pending, will not be imputed to the client.29 The Minnesota validity, it must be given, if given to a solicitor, to a solicitor who is actually, either expressly or impliedly, authorized as agent to receive such notices, and I am of opinion that in this case the solicitors were not so authorized." The solicitors in this case were employed by the trustees in all matters connected with the estate in which professional assistance was required, and at the time when the mortgage in question was executed they were acting for the trustees as executors of the estate, in a chancery suit to which the testator had been a party, and were also receiving on behalf of the trustees, and distributing among the persons entitled, the interest on a considerable mortgage which formed part of the testator's estate, and which they had been employed as solicitors in effecting, after the testator's death. See FLORENCE v. DE BEAUMONT (reported herewith) ante, 1565.

In PUFFER V. BADLEY (reported herewith) ante, 1561, a vendor was held not chargeable with knowledge of an offer made for the property by the vendee to a broker, and possessed by the vendee's attorney, who, at the request of the vendor's attorney, who had become ill, passed upon the sufficiency of the title to the property.

29 Trentor v. Pothen (1891) 46 Minn. 298, 24 Am. St. Rep. 228, 49 N. W. 129. The attorney was attorney for the defendant-that is, the vendor of the person to whom notice was sought to be imputed-in the action which was pending at the time of the examination of title.

This seems to have been the theory on which knowledge of attorneys of the insolvency of a grantor was held

court; 30
argues: "The rule which im-
putes to the principal the knowledge
possessed by the agent applies only to
cases where the knowledge is pos-
sessed by an agent within the scope
of whose authority the subject-matter
lies; in other words, the knowledge or
notice must come to an agent who has
authority to deal in reference to those
matters which the knowledge or notice
affects. . . Hence, in order to de-
termine whether the knowledge of the
agent should be imputed to the prin-
cipal, it becomes of primary impor-
tance to ascertain the exact scope and
extent of the agency. In this case it
appears from the evidence that the
agency was special, and limited to ex-
amining an abstract of title, and, from
that, giving the intervener an opinion
as to the sufficiency of defendant's
title. In other words, it was the or-
dinary case of the employment of an
attorney to examine the record title
and give an opinion whether or not it
is good. We do not suppose it was
ever understood that it was within the
scope of the agency of an attorney,
under such circumstances, to go be-
yond the record evidences of title and
not imputable to a vendee in Weil v.
Reiss (1901) 167 Mo. 125, 66 S. W.
946, where the attorneys were em-
ployed by the vendee merely to ex-
amine the abstract of title, report
upon the title shown by it, and draw
the deed.

30 Trentor v. Pothen (Minn.) supra. 31 Mauley v. Zeigler (1859) 23 Tex. 88, holding one who consults an attorney about the title to land, not chargeable with the knowledge of the attorney of an attachment which had previously been levied upon the land. It is stated by the court that "the principle is undoubtedly a sound one that a principal is generally chargeable with notice to his agents. But this principle cannot be stretched so far as to charge every man who consults an attorney about the title to land, with all the knowledge which the attorney may possess about the matter concerning which he is consulted."

Arrington v. Arrington (1894) 114 N. C. 151, 19 S. E. 351. See supra, note 3.

Rogers v. Driscoll (1910) 59 Tex. Civ. App. 419, 125 S. W. 599.

Forsyth v. Dow (1914) 81 Wash.

[4 A.L.R.

make inquiry of people generally for information as to facts that might affect the title. If a party who employs an attorney for the special purpose of examining an abstract and passing upon the record title is to be charged with notice of all knowledge which the attorney may have previously acquired from other transactions for other parties, it would be very dangerous to employ an attorney at all for any such purpose, and the one whom it would be most dangerous to employ would be the attorney having the most experience and the most extensive practice. We are of opinion that in view of the special and limited purpose for which the intervener employed this attorney, his knowledge of the pendency of this action cannot be imputed to his principal."

In a number of cases, one who employed an attorney to pass upon title to property has been held not chargeable with all knowledge possessed by the attorney in regard thereto.31 In some such cases, however, the decision is based upon the fact that the knowledge was not acquired in the course of the attorney's employment.32 It has 137, 142 Pac. 490, holding a purchaser of personal property not chargeable with knowledge of the price paid for such property by his vendor, possessed by an attorney whom the purchaser employed to see that he got title to the property.

Lowther v. Carlton (1741) 2 Atk. 242, 26 Eng. Reprint, 549, Cas. t. Talb. 187, 25 Eng. Reprint, 730.

32 A purchaser of land who has employed an attorney merely to pass on the record title, and draw the neces sary papers after he has made his purchase, is not chargeable with knowledge of a fraudulent intent on the part of the grantor, possessed by the attorney, and acquired prior to and independently of the employment. Rogers v. Driscoll (1910) 59 Tex. Civ. App. 415, 125 S. W. 599.

It is stated obiter in Lowther v. Carlton (Eng.) supra, that "if a counsel or attorney is employed to look over a title, and by some other transaction, foreign to the business in hand, has notice, this shall not affect the purchaser; for, if this was not the rule of the court, it would be of dangerous consequence, as it would be an objec

« PředchozíPokračovat »