175 A. 602 | Md. | 1934
Dr. Arthur Hebb, a surgeon specializing in procrology or rectal surgery, operated on David Brown, at the Church Home and Infirmary in Baltimore on December 21st, 1928, for an internal anal fistula. Brown remained in the hospital for several days, and after his return to his home visited Dr. Hebb's office, where his wound was dressed and treated daily, except for Saturdays and Sundays, for two months, and for a month after that he went every other day. Following that treatment, Brown received a bill from Dr. Hebb for $1,500, which he refused to pay on the ground that it was excessive. On September 1st, 1931, he received from Robert Coughlin, Jr., the following letter:
"I represent Dr. Arthur Hebb who operated on you some two years ago for a fistula. Dr. Hebb's bill of $1,500.00 is as yet unpaid and I have instructions to sue immediately if it is not taken care of. Will you please let me hear from you so I may know how to proceed."
To that letter Coughlin received the following reply from Messrs. Rosenbush Bernstein, a firm of lawyers practicing in Baltimore City: *538
"In Re: Dr. Arthur Hebb vs. David Brown.
Dear Mr. Coughlin: Your letter of September 1st, addressed to Mr. David Brown in the above connection has been referred to us.
On November 8th, 1928, Mr. Brown received a letter in the same connection and referred it to us, and we wrote as follows:
`November 11, 1929.
Attention of Mr. Wm. J. Murray, Mgr., Mercantile Collection Agency, Lexington Bldg., City.
Re: Dr. Hebb vs. David Brown.
Gentlemen: We are in receipt of yours of November 8th in the above connection. Mr. Brown authorizes us to make an offer of $300 in full settlement and compromise of the above claim.
Very truly yours,
Rosenbush Bernstein
By ____
R:MC'
Mr. Brown is ready and willing to pay that amount now, and he informs me that his information is the offer is a very liberal one for the services rendered.
Very truly yours,
MR:SF Rosenbush Bernstein."
On September 9th, 1931, Coughlin replied inviting further negotiations, and on September 11th, 1931, Rosenbush Bernstein answered declining to add anything to what they had previously said.
On October 5th, 1933, Hebb brought this action against Brown on the common counts in assumpsit to recover the $1,500 which he claimed for his services, and to the declaration Brown pleaded the general issue and limitations. The plaintiff joined issue on the general issue plea, and traversed the plea of limitations. The usual practice is to reply a new promise (Evans' Harris'Entries *539 155; Carey's Forms 156, 37 C.J. 1237), but as no point was made of the form in which the defense was presented, and as there is some precedent for it (Bullen Leake, Precedents ofPleadings 644,) it will be assumed that the issue as to whether the defendant did within three years before the suit promise to pay the plaintiff's claim was properly presented. The case, which was tried before the court sitting as a jury, resulted in a verdict and judgment for the plaintiff, and from that judgment this appeal was taken.
In the course of the trial the appellant reserved two exceptions to rulings on evidence, and two to the rulings of the court in respect to his prayers. The plaintiff was asked on cross-examination whether he classified an operation of "fistula in ano" as a major or minor operation, and he replied: "Well, I think next to cancer of the rectum, which is one of the biggest operations in the annals of surgery, that fistula in ano is one of the biggest operations we have to do." A motion to strike out that answer as not responsive was overruled. We find no error in that ruling, which is the subject of the first exception. The answer, while apparently not what counsel expected, was nevertheless directly responsive to his question.
The second exception deals with the action of the court in overruling a motion to strike out the letters quoted above, which had been admitted subject to exception. That ruling was also free from error. The letters were both material and relevant to the major issue upon which the case was tried, whether within three years before the suit defendant had admitted a present subsisting indebtedness to the plaintiff and, for reasons stated infra, were properly admitted.
At the close of the plaintiff's case defendant offered a prayer that there was no evidence in the case legally sufficient to remove the bar of the statute of limitations, and that therefore the verdict of the court sitting as a jury should be for the defendant. The prayer was refused and the third exception relates to that ruling. But since the defendant then offered evidence, he waived any *540 objection he may have had to it (cases collected in Carter'sDigest, sec. 382, Title Appeal), and that exception need not be further considered.
At the close of the whole case defendant reoffered that prayer and three additional prayers numbered two, three, and four, of which the second was granted and the others refused. Those rulings are the subject of the fourth exception.
The plaintiff in the course of his testimony had said that he had, four or five days before, examined the hospital records and discovered that the diagnosis noted on the record by the hospital interne was incomplete in that it described the operation as for a "fistula in ano," whereas to be complete it should have described it as for a "blind internal fistula in ano," and that witness completed the diagnosis by adding the words "blind internal." There was testimony tending to prove that an operation for an external fistula was simpler and less dangerous than one for a blind internal fistula, and inferentially less expensive, and defendant's third and fourth prayers were predicated upon the theory that, since the hospital records described merely a "fistula in ano," the court was authorized to find that the operation was for a "fistula in ano," and that, if it did so find, no evidence of the value of such a service having been offered, it was required to return a verdict for the defendant. The objections to that predicate are obvious. First, there is no necessary conflict between the terms "fistula in ano" and "blind internal fistula in ano," other than that the one term is generic and the other specific, the one complete and the other incomplete, the general description includes the specific, just as the term "water" would include fresh water, salt water, rain water, lime water, and the like. Second, entirely apart from the opinion evidence as to a reasonable charge for an operation for a blind internal fistula in ano, there was evidence of the time, labor, care, and skill given by the plaintiff in connection with defendant's ailment, and of the plaintiff's standing and skill as a surgeon, and from that *541 evidence the court as a jury was authorized, notwithstanding the absence of any opinion evidence of the value of the services, to appraise them itself. Sedgwick on Damages, sec. 664a (9th Ed.); 28 R.C.L. 670.
The substantial question presented by the appeal was raised by the refusal of the defendant's first prayer, in which he asked the court to rule that there was in the case no evidence legally sufficient to remove the bar of limitations, and that question turns upon the construction and effect to be given the letter from Rosenbush Bernstein to Coughlin dated September 3rd, 1931. The cause of action accrued early in 1929, the action was commenced on October 5th, 1933, and the action was barred unless within three years before the suit the defendant had expressly or impliedly promised to pay the debt. Apart from that letter there was no evidence of any kind of a new promise. The letter was written in an effort to compromise the claim, was not signed by the defendant but by his attorneys, and contained no express promise to pay the amount demanded by the plaintiff. Whether it was evidence of a new promise depended therefore upon these factors, (1) whether the statement that "Mr. Brown is ready and willing to pay that amount," meaning the $300 referred to in the letter from Rosenbush Bernstein dated November 11th, 1929, "now, and he informs me that his information is the offer is a very liberal one for the services rendered," is an acknowledgment of a present subsisting indebtedness; (2) whether that statement was so far integrated with the attempt to compromise the claim as to make it inadmissible as evidence of a new promise; and (3) whether, assuming that it was otherwise admissible, Rosenbush Bernstein were authorized to bind the defendant by such an admission. The langauge quoted is undoubtedly an admission that Hebb had rendered service; that he had not been paid for the service; that Brown was willing to pay him $300 in full settlement for such service but no more; that Hebb claimed $1,500 for the service, but that Brown definitely refused to pay that amount. *542
A concise and comprehensive statement of the rule defining the elements and effect of an admission or an acknowledgment necessary to constitute a new promise sufficient to take a case out of the statute of limitations is to be found in Wilmer v.Gaither,
Many of the cases in which varying phraseology has been held sufficient to constitute a new promise are collected in an elaborate opinion written by Judge Pattison in Knight v. Knight,supra. Cases in which the phraseology was held insufficient to remove the bar are Higdon v. Stewart, supra, where the proof was that Higdon, the defendant, had said "that he and Stewart never had had any settlement, and that he did not think he owed Mr. Stewart any thing, that he had receipts for all the money he had paid Mr. Stewart, except for one hundred dollars, but he did not know how much he had paid him, he thought he had paid him six or seven hundred dollars, but the books or receipts would show; sometime afterwards, Mr. Stone called his attention to the matter again, when he said he did not think he owed Mr. Stewart more than fifty dollars"; Frey v. Kirk, 4 G. J. 509, where it appeared that "a few days before the commencement of the suit, the defendant was shown the note, and asked if it was his, to which he replied, `yes,' and being then asked what arrangement he could make for its payment, replied, as regards that he could not say; being then informed that suit was to be brought, he again replied, `you may save yourself the trouble, as I have taken the benefit of the insolvent laws'"; Oliver v. Gray, 1 H. G. 206, 207, where it was proved that the defendant, who had executed a deed of trust for the benefit of certain creditors, excluding the plaintiff, said "that he regretted that the plaintiff was *544
excluded from the said deed of trust, and wished he had been allowed to come in for his claim under the said deed; but always added, that he did not consider that he was indebted to the plaintiff, because the plaintiff had it in his power to have saved himself, with the securities received from William Taylor, and ought not, therefore, to have looked to him for the money. * * * The plaintiff further offered in evidence, that he was not paid by the securities referred to in the preceding conversation, and that William Taylor was still indebted to the plaintiff in a large sum of money, although the ship Orozimbo, hereinafter mentioned, had been sold to the best advantage"; Stockett v.Sasscer,
Applying the analogies in these cases, and the cases cited inKnight v. Knight, supra, in our opinion the statement quoted above must be construed as an admission of a present subsisting indebtedness, but the admission was limited to the precise sum of $300. Higdon v. Stewart, supra. In that case a similar admission was held not sufficient to remove the bar for any amount, but the reason for that conclusion was, as the court construed his language, that when Higdon said "he did not think he owed Mr. Stewart more than fifty dollars," he meant that he thought that he owed Stewart nothing. But in this case, when Rosenbush Bernstein wrote that Brown's information was that the offer of $300 was a "very liberal one for the services rendered," they undoubtedly meant that Brown did owe something for the services, but that he did not owe as much as Hebb claimed. It was therefore an admission of a present subsisting indebtedness not exceeding $300, and revived the original debt to the extent of that admission, if Rosenbush Bernstein *545 were authorized to make the admission, and if the letter in which it was made was properly admissible in evidence.
The authorities are not in accord as to the power of an attorney to bind his principal by admissions of facts not in dispute, made when no cause is pending. Mechem, in his work onAgency, said: "Even though not falling within the admissions which the attorney may make in the progress of the cause, since they were made when no cause was pending or perhaps yet contemplated, statements made by an attorney as an agent in negotiating have been held admissible." But in connection with that statement he referred to the case of Cassels v. Usry,
The question undoubtedly is not free from difficulty, and, while, as he stated, there is authority for the statement of the rule by Mechem (Loomis v. N.Y., N.H. H.R. Co.,
The question is finally referable to the law of agency, for apart from his connection with actually existing litigation, an attorney would appear to be a mere agent, and, as a mere agent, his authority to bind his principal by his admissions or statements should depend upon the real or apparent scope of his agency, or, as announced in the Restatement of the Law ofAgency, A.L.I. secs. 284, 286:
"284. In actions between the principal and third persons, evidence of a statement by an agent is admissible for or against either party for the purpose of proving that such statement was made, if the fact that the statement was made constitutes, or is relevant in the proof of, *547 one of the ultimate facts required to be established in order to maintain a cause of action or defense."
"286. Statements of an agent to a third person are admissible in evidence to prove the truth of facts asserted in them as though made by the principal, if the agent was authorized to make the statement or was authorized to make, on the principal's behalf, true statements concerning the subject matter."
But in comment to section 284, specific situations in which attorneys are authorized to make such admissions even in respect to pending litigation are definitely excluded from the scope of that Restatement. See, also, Meginnes v. McChesney,
Turning to the immediate question, it appears (1) that a collection agency acting for Hebb wrote Brown demanding that he pay $1,500 for certain services; (2) that Brown referred that letter to his attorneys; (3) that they replied offering $300 by way of compromise; (4) that *548 nearly two years later Hebb's attorneys wrote Brown, who again referred the letter to the same attorneys, who (5) replied by quoting their first letter and adding that "Mr. Brown is ready and willing to pay that amount now, and he informs me that his information is the offer is a very liberal one for the services rendered." It is apparent from these admitted facts that Rosenbush Bernstein were retained generally to represent Brown as to that claim; that acting for him they admitted (a) that services had been rendered; (b) that they were worth something, but (c) asserted that they were not worth what Hebb claimed. In those admissions they removed from the field of dispute the fact that services had been rendered, leaving only the question of value. Such an admission would clearly seem to be within the obvious and apparent scope of the agency, formally made, and admissible.
The remaining question is whether, being otherwise admissible, they were nevertheless inadmissible because included in a letter which was on its face an attempt to compromise the claim.
It has long been the law in this state that an offer of compromise is not admissible in evidence as an admission that a debt is due and owing. Kalus v. Bass,
The natural implication of the statement "Mr. Brown is ready and willing to pay that amount," meaning $300, "now," is that Brown renewed his offer of compromise, but, when he added "he informs me that his information is the offer is a very liberal one for the services rendered," he announced an independent fact, not as a concession, for the fact that services had been rendered was not disputed, but as an admission made eo animo of a fact (Dunlap v. Montana-Tonopah Mining Co. [C.C.] 192 Fed. 714, Id. [C.C.A.] 196 Fed. 612), which was wholly independent of the offer of compromise, although it was connected with the subject matter of the controversy (22. C.J. 315).
With that admission in the case, there was evidence of a new promise at least legally sufficient to take the case to the court sitting as a jury, and defendant's demurrer prayer was properly refused, and, since there was no prayer submitted by the defendant limiting the amount recoverable to that admitted by the defendant, we find no error in the rulings involved in the fourth exception, and the judgment will be affirmed.
Judgment affirmed, with costs.