302 Mass. 442 | Mass. | 1939
The jury returned a verdict for the plaintiff in this action of contract to recover damages for breach of an alleged contract of employment. The writ describes the defendant as a corporation. The defendant’s exceptions are to the denial of its motion for a directed verdict; to the refusal of the trial judge to instruct the jury that, “5. The burden is on the plaintiff to show not only that the contract alleged was within the corporate powers of the defendant, but also that it was either made or ratified by an officer or officers having authority to bind the corporation. 6. The president or other executive officer of a corporation has no authority as such to make a contract that one should remain in the corporate employ for life even under a general power to appoint, remove and fix the compensation of employees, and such authority cannot be implied”; and to the action of the trial judge directing the defendant’s counsel to refrain in final argument from referring to “the necessity for, and to the lack of authority or ratification, to bind the defendant by such a contract as claimed.”
The defendant states in its brief that “The precise issues raised by this appeal [sic] are these, viz.: 1. The pretrial report did not eliminate the issue of corporate authority or ratification. 2. Defendant was seriously prejudiced by being denied the right to argue the issue of corporate authority or ratification to the jury.”
The “body” of a pre-trial report of the case which was “on file” is printed in full in the record. It appears therein that both parties were represented by counsel. Under the heading “Concessions or Admissions” appears: “On July 13, 1932 an agreement for employment was made between the parties. The plaintiff claims that the agree
The defendant does not contend that it is not bound by whatever concession or agreement may have been made by its counsel at the pre-trial call. It concedes that the pre-trial procedure provides for the possible elimination or narrowing of issues by some “stipulation or some admission” regarding them. See Fanciullo v. B. G. & S. Theatre Corp. 297 Mass. 44; Capano v. Melchionno, 297 Mass. 1,
It is obvious that the question raised must be answered by a determination of the force and effect of the language contained in that part of the pre-trial report entitled “Concessions or Admissions.” It is proper to consider the circumstances under which the pre-trial report was made. Adversary counsel, representing their clients, were before a judge of the Superior Court for the purpose, if possible, among other things, of providing for the elimination or narrowing of issues by some stipulation or admission regarding them. The defendant’s attorney could not be required to surrender any substantive rights of his client, but if, as such attorney, he made some stipulation or admission as to the existence or nonexistence of facts or as to issues involved or not involved in the case, the client should be bound by these stipulations or admissions made in its behalf or against its interest, unless some reason is disclosed why it should not. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207, 217. Fanciullo v. B. G. & S. Theatre Corp. 297 Mass. 44, 51. Although it is a general principle as to the conduct of jury trials that the presiding judge may alter issues to be submitted to the jury and discharge or modify ordinary stipulations touching the course of the trial, in order to accomplish justice, Capano v. Melchionno, 297 Mass. 1, 15, and cases cited, nevertheless the
No argument has been addressed to us as to the meaning of the word “agreement” appearing in the “Concessions or Admissions.” The defendant has not suggested that the word was used in any popular sense. In point of fact it concedes that “another and quite different contract” was made from that which the plaintiff relied upon. In the leading case of Packard v. Richardson, 17 Mass. 122, there is an extended discussion of the meaning of this word “agreement.” It is said that in a popular sense it is frequently used as declaring the engagement of one only, but that it also is used in a technical sense importing a mutual act of two parties. In Marcy v. Marcy, 9 Allen, 8, it was said, by Chief Justice Bigelow, at page 10, in discussing the meaning of the word “agreement,” in the statute providing that no action shall be brought upon an agreement that is not to be performed within one year from the making thereof, that, “In the absence of any explanatory or qualifying words, it must be interpreted according to the common and approved usage of the language, unless it has some peculiar and appropriate meaning in the law. ... In whichever sense it is understood — whether it is to be interpreted as signifying a mutual contract, and as intended to include the stipulations of both parties, which is its strict legal meaning, [italics ours] ... or as a promise or undertaking by one party only, of a purely unilateral character,” the requirement of the statute is that it is to be in writing. Compare Cunniff v. McDonnell, 196 Mass. 7; Marcelle, Inc. v. Sol. & S. Marcus Co. 274 Mass. 469; see Sage v. Wilcox, 6 Conn. 81, 85-87; Smith v. Ide, 3 Vt. 290; Wain v. Warlters, 5 East, 10, 16.
In what sense was the word “agreement” used by the parties and by the judge in the case at bar? An “agreement for employment was made between the parties,” and “The compensation provided in this agreement was as set forth in the declaration.” “The plaintiff claims that the
The attorneys for the defendant at the pre-trial call were not required to concede anything. It is not unreasonable to hope, however, that in the cooperative effort on the part of the Superior Court and bar to simplify and expedite the trial of cases, counsel will be disposed to agree as to matters concerning which there is no real controversy. The primary duty of any court is to see that justice is done, and if it should appear at the trial of any case that justice requires the discharge of stipulations or admissions which appear to have been improvidently made, or for the purpose of accomplishing justice, it is to be expected that the trial court will act in order to accomplish that end. Capano v. Melchionno, 297 Mass. 1, 15, and cases cited.
The pre-trial report in the case at bar appears to have been carefully drawn. It was put in writing and signed by the presiding judge. It was “on file” in the case. It is a part of the record that is before us. It contains the statement of a concession or admission that the “parties” made an agreement for employment. This agreement is therein referred to as “the contract.” Nowhere is there a suggestion or intimation of any question of the lack of authority of anyone acting in behalf of the defendant to make the agreement. The terms of the agreement were in dispute, but nowhere in the report is there any qualification of the admitted fact that the parties made an agreement.
Exceptions overruled.