¶1On Motion to Dismiss the Appeal on the Ground oe Acquiescence.
¶2The opinion of the court was delivered by
¶3On the 19th day of May, 1887, defendant’s counsel applied for an order of [devolutive appeal, which was granted, returnable to this court on the first Monday in June, 1887.
¶4The appeal was not completed.
¶5In May, 1888, the first counsel in the case being no longer employed, other counsel presented a petition of appeal from the judgment, in'which it was alleged that the first appeal had not been perfected by giving bond and filing the transcript.
¶6This appeal was made returnable to this court on the first Monday of June, 1887. A motion to dismiss]was filed on the ground that the defendant and appellant has acquiesced to the judgment.
¶7In support of this motion a letter of the defendant to his attorney, dated the 30th of May, 1887, was filed, also the affidavit of the attor*761ney who represented the defendant in 1887. There was also filed .an affidavit of defendant’s agent.
¶8This evidence received the attention of our court at the time the ■case was submitted in June last-
¶9With reference to the acquiescence and voluntary execution of the judgment alleged, it was held that unless the affidavits were rebutted or conclusively explained ‘ ‘ it seemed clear that appellant had lost his right of appeal.”
¶10The case was remanded to the lower court, with instructions to the judge to hear evidence on the questions of abandonment and .acquiescence vel non.
¶11The court’s decree having been complied with, the questions are before us for our decision.
¶12In 1887 there were two suits pending before the court a qua. The first, entitled H. Ware and Son vs. N. S. Greenwood, instituted to reinstate a lost deed; the other, entitled H. Ware vs. A. M. Morris, was a petitory action.
¶13In the former case, the plea of res adjudieata had been filed. It was overruled on the 18th May, 1887.
¶14The day after, judgment on the merits was rendered in favor of the plaintiff.
¶15In the other case, that of Ware vs. A. M. Morris, part of the same litigation, judgment was rendered in favor of the plaintiff on the 23d day of May, 1887.
¶16The counsel who represented the defendant at the time, wrote to him about these suits. (In both he represented him.) The former is auxiliary to the latter. There can be no question that the letter written by the counsel was dated the 24th day -of May, 1887, the day after the judgment had been rendered.
¶17The defendant testifies that he was advised that the plea of res adjudicata had been overruled, but that he did not receive any notice or the least information, after the judgment on the merits had become final.
¶18The testimony of the attorney who, at the time, represented the defendant in these cases is different.
¶19He states, “ I wrote N.S. Greenwood about the date of the judgment one or more letters, stating the status of the case.”
¶20“ My letter to Greenwood was written after final judgment.”
¶21To the best of his recollection he wrote full particulars, he says;
¶22*762In his answer to the letter of May 24, the defendant expresses disappointment at the result of his suit, and leaves it to his attorney to appeal or not. The attorney testifies that he had informed' the defendant of the hopelessness Of his case on appeal.
¶23He had received the information, for he writes in this letter that “it seems that you hav'e no hope that the judgment can be reversed.”
¶24Thus informed he nevertheless wrote to him and requested him not to appeal “ if you think there is no chance to reverse.”
¶25It is contended that the letter from the attorney was written immediately after the plea of res adjudieata had been overruled, and not after judgment on the merits; that in consequence he could not be held to have acquiesced in a judgment respecting which he had not been informed.
¶26The facts disclosed in the note of evidence preclude us from reaching the conclusion that the directions given and the statements made were not preceded by the least knowledge, on the part of the defendant, that a judgment against him had been rendered.
¶27The attorney at the time employed declares: “I had no hope of' gaining the case on appeal, and it is my recollection that upon the receipt of the letter leaving the matter to my judgment, I acted as I thought to the best interest of my client and did not carry the appeal up.”
¶28The agent of the defendant, after having consulted this attorney, directed the lessee of the defendant to pay the rental to plaintiff’s-counsel.
¶29In accordance with'this direction the rental of the places for 188*7, 1888 and 1889 were paid to them. The then attorney and the agent of the defendant together delivered the property to plaintiff’s counsel.
¶30Not the least objection was made.
¶31The property was sold.
¶32The sale was made after the counsel for the defendant had abandoned the appeal, and had informed the plaintiff that he did not intend to appeal.
¶33The defendant authorized the abandonment of an appeal; those authorized have acted upon this authorization.
¶34The rights resulting are fwits aceomplis; a condition which com*763menced under defendant’s direction, and has became binding and irrevocable by his acquiescence.
¶35The attorney has acted within the scope of his letter. His acts have not been repudiated, and therefore bind the principal.
¶36The taxes assessed in 1887 were not paid'by the defendant. The property has been assessed in the name of those to whom plaintiff sold. The defendant has not given himself the least concern about, the assessment ¡or the taxes.
¶37The special agent testifies that he was agent of the defendant for the years 1885, 1886 and 1887, and in that capacity leased the property involved in this litigation, and remitted the rents to him for all these years except the year 1887.
¶38The principal never called on him for the rental of this year nor of subsequent years.
¶39He surely knew that this rent had been collected, and the disposition made of the amount.
¶40The agent testified that he wrote to him on the subject, and it is. not made evident that the information has not been received.
¶41There is acquiescence; the judgment has been executed and the • right of appeal is lost.
¶42The motion is granted, and the appeal is dismissed.
¶43Judgment affirmed.