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no reason why an attorney should have a judgment recovered against him, when the plaintiff may be indebted to him in an equal or a greater amount, merely because he has rendered no account, considering that the client has ample means of procuring it to be taxed and moderated if necessary. I am therefore of opinion,--and my Brother Willes, who has left the Court to go to Chambers, desired me to say that he fully concurs,--that the defendant is entitled to judgment.
Then it is said that the plea is bad as being pleaded to a part of the claim in the third count which is for unliquidated damages, and not for a debt or sum certain, and therefore a claim to which the statute of set-off does not apply. It must, however, be observed that the plea in question is confined to so much of the third count as relates “to the plaintiff's claim in respect of the payment by him of the said sum of money as and for costs in the said suit.” It is therefore confined to a payment already made by the plaintiff to a specified amount, as to which the plaintiff claims to be indemnified. The case, therefore, comes within the principle of the judgment in Hardcastle r. Netherwood, 5 B. & Ald. 93 (E. C. L. R. vol. 7). That was assumpsit, in consideration that the plaintiff, for the accommodation and at the request of the defendant, would accept certain bills of exchange, and would deliver them, so accepted, to the defendant, in order that he *8677 might negotiate the same *for his own benefit, the defendant
"I undertook to provide money for the payment of the said bills as they became due, and to indemnify the plaintiff from any loss or damage by reason of the acceptance thereof: breach, that the defend. ant did not provide money for the bills, nor indemnify the plaintiff from damage, by reason whereof the plaintiff, as acceptor, was forced and obliged to pay to the holders of the bills certain sums of money, with interest, charges, and expenses: and it was held, upon demurrer, that, as the plaintiff might be entitled upon this declaration to recover special damage, a set-off was not a good plea. In giving judgment, the Court says: “This case cannot be distinguished from that which has been cited (Auber v. Lewis, E. T. 1818, K. B., Manning's N. P. Dig., 2d edit. p. 251). The Court must look to the contract declared on, and, if that is such as might entitle the party to recover special damages, the statutes of set-off do not apply, although no special damage he alleged. Here, however, the jury might possibly give damages for the manner in which the plaintiff had been forced and compelled to pay the amount of the bills. The defendant might, perhaps, have pleaded a set-off to that part of the count which charges the defendant with the amount of the acceptances paid by the plaintiff.” Adopting that suggestion, I am of opinion that this is a perfectly good plea as pleaded, and therefore that our judgment should be for the defendant.
BYLES, J.-I am of the same opinion, and I have but little to add. As to the absence of a signed bill being an objection to a plea of set-off, it strikes me that the demand of an attorney for fees, charges, and disbursements, answers the description of a debt, though no bill has been delivered. But what influences me is the long current of *868] *2497 authorities, as evidenced by all the *editions of Tidd and Archpractice. The third count states that the terms upon which the defendant was employed to conduct the defence of the suit referred to, were, that the defendant was to indemnify the plaintiff against all costs which he as defendant in that suit might be obliged to pay; it then goes on to allege that the plaintiff, relying on the defendant's promise, employed him as his attorney, and that he was compelled to pay certain costs to the plaintiff in that suit, and that, although all things had happened necessary to entitle the plaintiff to have the defendant's said promise fulfilled, yet the defendant had broken the same, and had not indemnified the plaintiff according to his promise, or paid the plaintiff the sum he had paid for such costs, or any part thereof. Now, the breach consists of two parts,-first, that the defendant had not indemnified the plaintiff according to his promise. That would sound in damages, and clearly would not be the subject of a set-off. But the *second part of the breach is, that the defendant has not paid r*220 the plaintiff the sum which he had been obliged to pay for costs. The plea is confined to that part of the breach: and that, it seems to me, is a debt within the statute, to wbich a set-off may be pleaded. The defendant, therefore, is entitled to our judgment upon both demurrers.
bold :(a) and I am not disposed to throw doubt upon a settled (a) In Archbold, 10th edit. 100, the law is thus stated, -"As the statute only requires the delivery of the bill in order to maintain an action or suit for it (Harrison . Turner, 10 Q. B.
Judgment for the defendant. 482, (E. C. L. R. vol. 59)), an attorney may prove his bill under a fiat of bankruptcy (Eicke v. Nokes, M. & W. 303), or be a petitioning creditor (Ex parte Prideaux, 1 Glyn & J. 28), without previously delivering it. If the defendant accept a bill of exchange or give a guarantee or any other security for the payment of his bill, the plaintiff may bring an action on the security without delivering such bill (Jeffreys v. Evans, 3 D. & L. 52, 14 M. & W. 210+). Also, no delivery is necessary for the purpose of setting off the bill in an action brought against the attorney by his client (Lester v. Lazarus, 2 C. M. & R. 667,7 per Parke, B.). But the Court or a Judge may in any of the above cases order the delivery of the bill for the purposes of taxation, as in other cases (Williams v. Frith, 1 Dougl. 199; Bulman v. Birkett, 1 Esp. 449; Murphy o. Cunning ham, 1 Apstr. 198; Tidd, 9th edit. 333, 334)."
PAUL FELTHOUSE v. BINDLEY. July 8. A. and B. verbally treated for the purchase of a horse by the former of the latter. A few days afterwards, B. wrote to A. saying that he had been informed that there was a misunderstanding as to the price, A. having imagined that he had bought the horse for 301., B. that he had sold it for 30 guineas. A. thereupon wrote to B. proposing to split the difference, adding,“If I hear no more about him, I consider the horse is mine at 301. 158.” To this no reply was sent. No money was paid, and the horse remained in B.'s possession. Six weeks afterwards, the defendant, an auctioneer who was employed by B. to sell his farming stock, and who bad been directed by B. to reserve the horse in question, as it had already been sold, by mistake put it up with the rest and sold it. After the sale B. wrote to A. a letter which substantially amounted to an acknowledgment that the horse had been sold to him :
Held, that A. could not maintain an action against the auctioneer for the conversion of the horse, he baving no property in it at the time the defendant sold it,-B.'s subsequent letter not having (as between A. and a stranger) any relation back to A.'s proposal.
This was an action for the conversion of a horse. Pleas, not guilty, and not possessed.
The cause was tried before Keating, J., at the last Summer Assizes at Stafford, when the following facts appeared in evidence:– The plaintiff was a builder residing in London. The defendant was an auctioneer residing at Tamworth. Towards the close of the year 1860, John Felthouse, a nephew of the plaintiff, being about to sell his farming stock by auction, a conversation took place between the uncle and nephew respecting the purchase by the former of a horse of the latter; and, on the first of January, 1861, John Felthouse wrote to his uncle as follows:
“Bangley, January 1st, 1861. *870]
“Dear Sir,—I saw my father on Saturday. He told *me ' that you considered you had bought the horse for 301. If so, you are labouring under a mistake, for, 30 guineas was the price Í put upon him, and you never heard me say less. When you said you would have him, I considered you were aware of the price, as I would not take less.
“John FELTHOUSE.” The plaintiff on the following day replied as follows:
"London, January 20, 1862. “Dear Nephew,—Your price, I admit, was 30 guineas. I offered 301., — never offered more: and you said the horse was mine. However, as there may be a mistake about him, I will split the difference, --301. 15s.,-I paying all expenses from Tamworth. You can send him at your convenience, between now and the 25th of March. If I hear no more about him, I consider the horse mine at 301. 15s.
“Paul FELTHOUSE." To this letter the nephew sent no reply; and on the 25th of February the sale took place, the horse in question being sold with the rest of the stock, and fetching 331., which sum was handed over to John Felthouse. On the following day, the defendant (the auctioneer), being apprised of the mistake, wrote to the plaintiff as follows:
“Tamworth, February 26th, 1861. “Dear Sir, I am sorry I am obliged to acknowledge myself forgetful in the matter of one of Mr. John Felthouse's horses. Instructions were given me to reserve the horse: but the lapse of time, and a multiplicity of business pressing upon me, caused me to forget my previous promise. I hope you will not experience any great inconvenience. I will do all I can to get the horse again : but shall know on Saturday if I have succeeded.
“WILLIAM BINDLEY." *8711 277 *On the 27th of February, John Felthouse wrote to the - plaintiff, as follows:
“Bangley, February 27th, 1861. "My dear Uncle,--My sale took place on Monday last, and we were very much annoyed in one instance. When Mr. Bindley came over to take an inventory of the stock, I said that horse (meaning the one I sold to you) is sold. Mr. B. said it would be better to put it in the sale, and he would buy it in without any charge. Father stood by whilst he was running it up, but had no idea but he was doing it for the good of the sale, and according to his previous arrangement, until he heard him call out Mr. Glover. He then went to Mr. B. and said that horse was not to be sold. He exclaimed he had quite forgotten, but would see Mr. Glover and try to recover it, and says he will give 51. to the gentleman if he will give it up: but we fear it doubtful. I have kept one horse for my own accommodation whilst we remain at Bangley: and, if you like to have it for a few months, say five or six, you are welcome to it, free of any charge, except the expenses or travelling: and if, at the end of that time, you like to return him, you can; or you can keep him, and let me know what you think he is worth. I am very sorry that such has happened ; but hope we shall make matters all right; and would have given 51. rather than that horse should have been given up.
“JOHN FELTHOUSE." On the part of the defendant it was submitted that the letter of the 27th of February, 1861, was not admissible in evidence. The learned Judge, however, overruled the objection. It was then submitted that the property in the horse was not vested in the plaintiff at the time of the sale by the defendant.
A verdict was found for the plaintiff, damages 331., leave being reserved to the defendant to move to enter *a nonsuit, if the rxon Court should be of opinion that the objection was well! founded.
Dowdeswell, in Michaelmas Term last, accordingly obtained a rule nisi, on the grounds that “sufficient title or possession of the horse, to maintain the action, was not vested in the plaintiff at the time of the wrong; that the letter of John Felthouse of the 27th of February, 1861, was not admissible in evidence against the defendant: that, if it was admissible, being after the sale of the horse by the defendant, it did not confer title on the plaintiff; and that there was at the time of the wrong no sufficient memorandum in writing, or possession of the horse, or payment, to satisfy the statute of frauds." Carter v. Toussaint, 5 B. & Ald. 855 (E. C. L. R. vol. 7), 1 D. & R. 515 (E. C. L. R. vol. 16), and Bloxam v. Sanders, 4 B. & C. 941 (E. C. L. R. vol. 10), 7 D. & R. 396 (E. C. L. R. vol. 16), were referred to.
Powell showed cause.—There was an ample note of the contract in writing to satisfy the statute of frauds. When the parties met in December, 1860, it was agreed between them that the plaintiff should become the purchaser of the horse. It is true, there was a slight misunderstanding as to the price, the plaintiff conceiving he had bought it for 301., the nephew thinking he had sold it for 30 guineas. On being apprised by the nephew that he was under a mistake, the plaintiff wrote to him proposing to split the difference, concluding with saying, “If I hear no more about him, I consider the horse is mine at 301. 15s." The question is whether there has not been an acceptance of that offer by the vendor, though nothing more passed between the uncle and nephew until after the 25th of February, the day on which the sale by auction took place. Could the plaintiff after his letter of the 2d of January have refused to take the horse? It is true *that letter was unanswered ; but it was proved that the r*279 nephew afterwards spoke of the horse as being sold to the love plaintiff, and desired the auctioneer (the defendant) to keep it out of the sale. Although written after the conversion, the letter of the 27th of February was clearly evidence, and, coupled with the plaintiff's letter of the 2d of January, constituted a valid note in writing, even as between the uncle and the nephew. [KEATING, J.-You were bound to show a binding contract for the sale of the horse before the 25th of February.] The letter of the nephew of the 27th is an admission by him that he had before that day assented to the bargain with the plaintiff. [BYLES, J.—That only shows a binding contract on the 27th of February. What right had the plaintiff to impose upon the nephew the trouble of writing a letter to decline or to assent to the contract?] It was not necessary that he should assent to the contract by writing: it is enough to show that he assented to ii. [BYLES, J.—There was no delivery or acceptance : and there could be no admission of delivery and acceptance. WILLES, J.-To be of any avail, you must make out a valid contract between the uncle and nephew prior to the 25th of February.] It was not necessary that the assent to the terms of the plaintiff's letter should be in writing. In Dobell v. Hutchinson, 3 Ad. & E. 355 (E. C. L. R. vol. 30), 5 N. & M. 251 (E. C. L. R. vol. 36), it was held, that, where a contract in writing, or note, exists which binds one party to a contract, under the statute of frauds, any subsequent note in writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any contract which contains them. So, in Smith v. Neale, 2 C. B. N. S. 67 (E. C. L. R. vol. 89), it was held that a written proposal, containing the terms of a proposed contract, signed by the defendant, and assented to by the plaintiff by word of *2741 mouth, is a sufficient *agreement within the 4th section of the
'* statute of frauds. [WILLES, J.—That was a very peculiar case. The plaintiff had done all that she had agreed to do, and nothing remained to be done but performance on the defendant's part. But, to say that transactions between third parties are to be controlled or affected by an intermediate letter written by a person who is no party to the record, is a somewhat startling proposition. BYLES, J.-I feel great difficulty in seeing how the nephew's subsequent admission can be binding on the defendant, or even evidence against him.] It is enough that the memorandum relied on to satisfy the statute of frauds is made at any time before action brought : Bill v. Bament, 9 M. & W. 36.7
Montaque Smith, Q. C., and Dowdeswell, in support of the rule.The letter of the 27th of February was clearly inadınissible. The 17th section of the 29 Car. 2, c. 3, provides that “no contract for the sale of any goods, &c., shall be allowed to be good, except some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such contract," &c. At the time the sale complained of here took place, there clearly was no binding contract for the sale of the horse by the nephew to the plaintiff. [WILLES, J.Could the plaintiff have insured the horse on the 25th of February ?] He could not: he had no insurable interest. [WILLES, J.-As to third persons, one cannot see any reason for giving a relation to the subsequent writing, though as between the immediate parties one can.) Carter v. Toussaint, 5 B. & Ald. 855 (E. C. L. R. vol. 7), 1 D. & R. 515 (E. C. L. R. vol. 16), is a far stronger case than the present. There, a horse was sold by verbal contract, but no time was fixed for payment of the price. The horse was to remain with the vendors for twenty days without any charge to the vendee. At the expiration of that time, the horse was sent to grass, by the direction of the vendee, and *9757 by *his desire entered as the horse of one of the vendors; and
po it was held that there was no acceptance of the horse by the vendee, within the 29 Car. 2, c. 3, s. 17. And see Smith's Mercantile Law, 4th edit. p. 468 et seq. Here, the plaintiff had clearly no property in the horse on the 25th of February, the day of the sale by the defendant. How, then, can an admission ex post facto by a