8 Mass. 51

Gilbert v. Williams

Decided September 15, 1811

Massachusetts Supreme Judicial Court · decided 1811-09-15

The declaration alleges that the defendant is a practising attorney in the counties of Berkshire and Hampshire; that .the plaintiff, being possessed of a certain promissory note for 28 dollars made by one Willard and payable to one Cutler, delivered the same note to the defendant, to be by him collected and paid over to the plaintiff, the same being*due and the property of the plaintiff; that he retained and employed the defendant, for a reasonable fee or reward to be paid him by the plaintiff, in his said capacity of attorney, to use all necessary care and fidelity in suing and collecting said note, and especially directing him without delay to commence a suit thereon, and to attach sufficient property of Willard’s to secure the debt and costs, which he might liave done ; but that he so carelessly and negligently conducted the said trust, that the note has never been paid or collected, and the plaintiff has wholly lost the money due on said note, by the mere negligence of the defendant in his said capacity as aforesaid. The action was referred to the opinion of the Court upon an agreed statement of facts, in substance as follows: — In February or March, 1804, the plaintiff wrote a letter to the defendant, then collecting attorney in the courts of the counties of Hampshire and Berkshire, containing a copy of the note mentioned in the declaration, requesting the defendant to collect the money due on it, suggesting that he considered the debt precarious, and desiring him to secure it by an immediate attachment of the debtor’s property. On the 15th of March, the defendant answered the plaintiff’s letter, saying that he had seen Willard, that he was to continue there in business, and had assured him that if the note was sent, it should be paid. March 20th, the plaintiff replied, “ Agreeable to your request I enclose the note against Willard. Should you get the money, it will not be necessary to send it by mail. Probably you will attend the first court at Northampton, and if I am not there, you may hand it to Mr. Leavitt or Mr. Newcomb.” At that time Willard was tenant of a furnace in Dalton at a rent, carrying on business therein, and apparently in large and profitable business and good credit. When called on by the defendant to pay the note, he assured him that he would pay it shortly, and proposed to get an order on the defendant from one Booth, for whom the defendant was collecting money, and with whom Willard had dealings. * The note not being paid, the defendant on the 7th of May filled a writ against Willard, which he endorsed, and on which he directed sufficient property to be attached, or no service to be made of it. But on Willard’s assurance that the money should be paid before the court should sit, or an order obtained from Booth, the writ was not delivered to an officer. Willard continued in good credit until June 15, 1804. He had before that time confessed a judgment to one Goodwin for about 700 dollars, which was not known to the defendant. A .few days previous to the 15th of June, Goodwin’s execution on the said judgment was delivered to a deputy sheriff, who arrested Willard thereon, pursuant to orders from Goodwin, and .committed him to prison. But it is agreed that, had the officer had other orders, he might have secured the demand. On this his other creditors immediately attached his property, which was sold at a very great loss upon execution. The defendant was absent from home on the day of Willard’s arrest, but returning in the evening, he delivered a writ of attachment against Willard to a proper officer, directing him to attach property. On this writ the officer’s fees for attaching and securing property, all of which had been previously attached, were charged at 8 dollars 25 cents, and paid by the defendant. The property so attached was afterwards sold to satisfy judgments secured by prior attachments. A judgment was obtained against Willard, and execution sued out and delivered to an officer for collection ; but no part of it was collected, and Willard is insolvent, and wholly unable to satisfy the judgment. On the above-mentioned 15th of June, while the defendant was from home, two writs of attachment were issued by his cleric, (who did not know that Willard’s note had been left with the defendant for collection,) by which Willard’s property was secured, to the value of" more than 50 dollars. It is agreed that the defendant received no other instructians from the plaintiff, than are above mentioned ; * that the plaintiff knew nothing of the proposed arrangement for payment by way of Booth, as above stated ; and that Willard’s note to Cutler was the property of the plaintiff. Upon these facts it was agreed that the Court should render judgment, provided that in their opinion the same would support the plaintiff’s declaration, or any other that could be filed in the case arising on the said facts. If the Court should be of opinion that the defendant was guilty, judgment to be rendered for the plaintiff for 30 dollars 24 cents, with interest from the recovery of the judgment against Willard; otherwise the defendant to recover his costs. The cause was argued at the last September term in this county by Leavitt and Newcomb for the plaintiff. Mr. Williams defended himself.

Good law ✅— No negative treatment on recordhow we know

Decided 1811-09-15

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Cited by 20 later decisions — most recently May 2019

1 federal appellate · 19 state decisions

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¶1The cause was continued for advisement, and at this term the opinion of the Court was delivered as follows, by

Sedgwick, J.

¶2There is no doubt that for any misfeasance or unreasonable neglect of an attorney, whereby his client suffers a loss, an action may be supported and damages recovered to the amount of that loss. By this I do not mean that an attorney is to be answerable for every error or mistake, and to be punished for it, by being charged with the payment of the debt, which he was employed to recover for his clients; but, on the contrary, that he shall be protected, where he acts with good faith, and to the best of his skill and knowledge. (2)

¶3It would be unnecessary in this case, were it practicable, to define precisely the kind of neglect, for which an attorney is responsible to his client. It will be sufficient to decide this case, that whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Let the claim of the plaintiff in the action before us be tried by this rule.

¶4In February, or March, 1804, the plaintiff enclosed a copy of a note against Charles Willard to the defendant, informing him that he wished to have the contents collected ; that he considered the debt as precarious; and requesting to have it secured immediately by attaching Willard’s property. — The instructions were, to have the debt immediately secured by attaching the property. Such instructions he had a right to give ; and it was the duty of the defendant, if he undertook the trust of collecting the debt for the plaintiff, to *53obey them. — He did undertake it; and on the 15th of the same March informed the plaintiff by. letter, that he had seen Willard, who, he said, was to continue in business, and that he had assured him, if the note was sent to him, (the defendant,) he (Willard) would pay it. On the 20th of March, the note was * enclosed and sent by the plaintiff to the defendant, without any new instructions, further than as to the manner of remitting the money.

¶5From this statement of the facts, it is manifest that the instruo lions of the plaintiff were disobeyed. But it is said, by the terms of the letter of the 20th of March, they were waived. — Of this, in my opinion, there is no pretence. It is true no new instructions were given, nor were they necessary. All the information which the plaintiff had received, after he had made up his mind that his debt was precarious, and had given instructions conformably to have it secured, was derived from the defendant. If the debt was paid, he certainly did not wish that a suit should be instituted; but there was nothing in his letter which indicated a consent to delay on any other terms.

¶6After some proposals by Willard to the defendant as to making payment had failed, he, on the 2d of May, issued a writ of attachment, with orders to secure the debt, which might then have been done. But the defendant, instead of obeying the instructions which he had so long before received, accepted a new promise, and the writ was not served. On the 15th of the ensuing June, two writs were issued from the defendant’s office against Willard, and more property was attached than would have been sufficient to satisfy the plaintiff’s demand. At this time the defendant was from home, and the writs were issued by his clerk. This surely can be no excuse for the defendant. After having, at his own pleasure, with out the consent of the plaintiff, and against the obvious meaning of his instructions, suspended proceedings against Willard, he ought not to have left his office in the charge of his clerk, without giving orders to secure this debt, if it should become necessary.

¶7It appears, then, that from some time previous to the 15th of March, when the defendant made his answer to the plaintiff’s letter of instructions, the defendant neglected to obey them; and it also appears, that during the whole of * that time Willard had open and visible property, which might have been attached to secure the plaintiff’s debt, and which would have been so attached, if his instructions had been obeyed. Surely these facts show that there has been an unreasonable neglect, and a consequent loss, for which the defendant is accountable.

¶8After pronouncing this opinion, it is but justice to the charaetei *54of Mr. Williams, to declare that I am acquainted with no man, in whose faithful and upright conduct, and diligent attention, as an attorney, I should place more confidence. And in the case before us, although the error on the part of Mr. Williams was such, as to render him liable to indemnify the plaintiff for the loss he has sustained, yet I have no doubt it had its foundation in a humane desire to save expense and vexation to the debtor.

¶9It is the unanimous opinion of the Court, including the Chief Justice, who was present at the hearing of the cause, that the plaintiff is entitled to judgment.

¶10 4 Burr. 2061, Pitt vs. Yalden.