Z. S. SPAULDING et al. v. S. H. ALLEN et al.

(Eighth Circuit — Cuyahoga Co., O., Cir’t Court, Oct. Term, 1899.) Before Caldwell, Marvin and Hale, JJ. Z. S. SPAULDING et al. v. S. H. ALLEN et al. Endorsement in blank — Parol evidence inadmissible to vary legal effect— (1). The endorsément in blank, being unrestricted and unambiguous, its legal import could not be varied by parol evidence. Attorney of trustee-Extent of authority — Can not waive rights of trustee or estate— (2). An attorney of a trustee cannot contract to waive the rights of an estate which his clients only hold as trustee. Except in the management of that particular action and the mode and manner of conducting that litigation, the attorney has no authority or power to prejudice the substantial rights of the estate, of the' trustees, or of the cestui que trust. Error to the Court of Common Pleas of Cuyahoga countv. Burke & Ingersoll, for Plaintiff in Error Burton & Bake, for Defendant in Error. [MAJORITY — Ham, J.] Ham, J. A demurrer to the fourth defense ^as"properly sustained. First: The endorsement in blank being unrestricted and unambiguous, its legal import could not be varied by parol evidence. ' Second: The dismissal of the former action as to Armstrong, was without prejudice and no bar to this action or to the cause of action sought to be enforced in this action. Third: The attorney of the defendant in error had no authority by virtue of his employment as an attorney to prosecute the former action, to make a settlement having the legal effect here claimed. An attorney of a trustee cannot contract to waive the rights of an estate which his clients only hold as trustee. Except in the management of that particular action, the mode and manner of conducting that litigation, the attorney had no authority or power to prejudice the substantial rights of the estate, of the trustees, or of the cestui que trust. Fourth: There was no ratification of the alleged contract of the attorney. No such result follows from the receipt of the proceeds of the sale of the mortgaged property in the foreclosure action. Defendant in error was entitled to receive that money, and also to his remedy against the endorsers, and this latter right was not affected by the receipt of the < money m the foreclosure action. The application of these principles to the case settles every claim of error made by plaintiff. We find no error upon the record, and the judgment of the court of common pleas is affirmed.