Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-02-25

maintained on q demand ssettled by q |
creditor or his attorney entrusted Ito Il
collect lits.in full discharge thereof, by |
the feceipt of money or other valua-
BILE consideration, however SMALL
1t Is obvious that this statute is not |
available in the defence OF this action,
first, because there was no settlement |
Of the demand lin full discharge there
Of" and secondly, because it does not |
appear from any facts stated in the |
exceptions, that there was any valua- |
BILE consideration whatever for "waiv- |
ing and releasing" the last nine items |
in the plaintiffs account.
Indeed this statute is not relied upon |
or involved by the counsel for the de- |
fendant. but it is contended in his be-
half that in attempting to waive and |
celease'' the nine items in question, the |
attorney of record at that tine was
acting within the scope of his author
ity as an attorney at law retained by
the plaintiff to collect the claim en-
trusted TO him; that by virtue of his
employment he had the implied power
to elect and control the remedy and
to avail himself of such mode of pro-
cedure as he deemed most effectual in
accomplishing the purpose OF his en-
ployment, and that the waiver of the
tens in question was simply incident
to the conduct of the suit and the con-
troll of the remedy, and as such was
within the general authority OF an at
.orney.
But the law is too we'll settled and
familiar to admit of discussion that an
lttorney who is clothed with no other
authority than that arising from his
employment in that capacity, has no
power to compromise and settle or re-
ease and discharge his clients claim
He may do all things incidental to the
prosecution of the suit and which af-
ect the remedy only, and not the cause
# action. He cannot bind his client by
my act which amounts to surrender
IN whole or in part of any substantial
ight
The plaintiffs cause Of action was
claim against the defendant for SER
vices rendered in decorating the Au-
litorium at Portland. 1t was obvious
~ the plaintiffs contention that his
ause of action arose from one bar
rain and one entire contract or single
lob as between him and the defendant.
attorney was repudiated by the plain
if and under the introductions of the
residing Justice to which no excep-
lions We're taken by the defendant, the
,laintlff's contention that the entire
lain was due. appears TO have been
adopted in tie special finding of the
ury. The defendant filed no motion to
nave this finding set aside. but entered
into a stipulation with the plaintiff
hat # the exception to the charge
lpon the question of waiver were sus-
aimed. Judgment, if for the plaintiff
n any amount shall be for the full
lrlount Of the plaintiffs claim with
interest from the date of the writ
Under the circumstances of this case,
he law is we'll settled that if the items
which the attorney attempted to waive
rad been stricken from the account
~ authority of the plaintiff himself.
~ further action could ever have been
Maintained for their recovery.
The principle is uniformly and in
,eXibly maintained that judgment
OF Il part of an entire demand is
ar to any other suit for another part
Vt the same demand A claim which is
n it's nature entire cannot be split up
into several causes of action, and II
suit is brought for a part only OF the
tens constituting an entire claim. re-
covery for that part will bar recovery
in any subsequent suit for the residue
or arv other items of the same de-
nand.
"Thc true distinction between de-
mands or rights of action which are
single and entire. and those which are
several ard distinct is, that the former
Immediately arise out Of one and the
same act or contract. and the latter
out Of different Acts or contracts.
Perhaps as safe and simple test as
the subject admits of, by which to de-
termine whether a case belongs to one
class or the other, is by inqulring
whether it rests upon one or several
acts or agreements. In the case OF
torts, each trespass, or conversion or
fraud. gives a right of action, and but
=, single one however numerous the |
items of wrong or damage may be- IN |
respect to contracts express or Implied, |
each contract affords one ana only one |
cause of action"
The conclusion is therefore irreslstl-
Vie that the nine items OF the account
sued which the pidlHtll > loiiiici a.
torney attempted to waive and re-
lease" and which the jury found to be
actually due, constituted part of the
PLAINTIFFS single cause of action. and
that Judgment for the first four items
would have been bar to any subse-
nuent action for the items waived. In
agreeing to eliminate those items from
the account without the knowledge ana
consent of his client, the former at
torney exceeded his authority and I'M
der the stipulation of the parties, the
certificate must be
Exceptions sustained. Judgment for
The nlaintiff for $3.50, with interest from
March / 1907.
SOMERSET