114 N.Y.S. 1065 | N.Y. App. Div. | 1909
The plaintiff brings this action as the assignee of Marsh, Winslow & We ver, who were attorneys at law, it being based upon a promise alleged to have been made by the defendant whereby he promised and agreed that he, the said defendant, would pay to the said attorneys an amount equal to the total of all the debts and obligations referred to in paragraph 4 of an agreement made between the defendant and one Lillian T. Platt, his wife, a copy of which agreement is annexed to the complaint. After setting forth this alleged agreement the complaint alleges that the said firm of Marsh, Wins-low & Wever, plaintiff’s assignor, paid certain debts and obligations referred to, aggregating $2,471.67, and had become obligated to pay certain other indebtedness aggregating $1,125.50. Upon the trial the plaintiff obtained a verdict for the amount that his assignors had actually paid and from the judgment entered thereon the defendant appeals.
To justify a recovery, therefore, the plaintiff was required'to prove an independent agreement between the defendant and the plaintiff’s assignors, by which the defendant agreed to pay to the plaintiff’s assignors the sum of money for which plaintiff has recovered a judgment. The plaintiff’s assignors had no transactions directly with the defendant, but the arrangement that was made was between the plaintiff’s assignors acting as attorneys for defendant’s wife and one of the defendant’s attorneys who had appeared to defend the action for divorce.
Upon the trial it appeared that differences had arisen between the defendant arid Ms wife, Lillian T. Platt, and that she had commenced an action for divorce, the wife being represented by the plaintiff’s assignors and the defendant by the firm of Parker, Hatch
With this agreement Mr. Hatch had an interview with Mr. Wever, one of the plaintiff’s assignors, on November 12,1906. According to Mr. Wever’s testimony, Mr. Hatch presented' this agreement to Mr. Wever for Mrs. Platt to sign, she being in an adjoining room. After the agreement had been to some extent modified, Mr. Wever presented it to Mrs. Platt, who refused to sign it if these bills.were to be paid out of the $25,000 that was to be paid for her benefit. After Mrs. Platt’s refusal, Mr. Wever left Mrs. Platt, returned to the room in which Mr. Hatch was waiting, and reported that Mrs. Platt would not sign that agreement as it then read. After further discussion, Mr. Hatch finally said: “We will pay all bills incurred up to September 20, 1906.” This proposition was referred to Mrs. Platt, who absolutely refused to pay any bills or allow any to be paid out of that fund, and would not sign the agreement. Mr. Wever then went back to Mr. Hatch and reported this refusal. Mr. Wever then said to Mr. Hatch : “My firm will pay these bills, provided you will reimburse us for all of the items that are incurred prior to September 20th; ” to which Mr. Hatch replied : “ We will do that; that is all right; we will do that.” Whereupon Mr. Hatch left, and that was the end of his connection with the transaction. Subsequently Mr. Wever induced Mrs. Platt to sign the agreement upon his assurance that his firm would save her harmless from the bills, stating to her: “You sign that agreement and we will protect you, so you won’t have to pay a dollar yourself on those bills,” and Mrs. Platt signed the agreement on that condition. After leaving
There are two questions presented : The first is whether under this conversation there can be spelled out an obligation of the defendant to the attorneys as distinct from the obligation to their client, his wife ; and, second, whether if there was such an agreement, Hr. Hatch liad any authority, or apparent authority, to make such a final contract, imposing a liability upon the defendant. It can hardly be disputed that all prior negotiations and understandings between the defendant and his wife or between the defendant and Hr. Wever, one of the plaintiff’s assignors, as trustee, were finally merged in the written' instrument subsequently executed. This agreement in the most explicit terms required these bills to be paid out of the sum of $25,000 ; that defendant paid to one of the plaintiff’s assignors as trustee, and the trustee undertook to pay the bills before turning over any part of that sum to the defendant’s wife. And it was expressly agreed that if the defendant was compelled to pay any of these bills or any other obligations of his wife he should have a right to deduct it from the moneys that were subsequently to become due to her under the agreement. The subject
In considering this agreement as a whole it is somewhat difficult to separate the interests of Mr. Wever as trustee under this agreement and Mr. Wever as representing his firm, acting as they were for the defendant’s wife. Both Mr. Hatch and Mr. Wever were assuming to act in a strictly representative capacity, each representing clients. The whole conversation had relation to the agreement between their respective clients which agreement was to be represented by the writing which was under consideration. The defendant and his wife had disagreed as to the payment of these bills, Mr. Hatch on behalf of the defendant claiming- that the bills should be paid out of the $25,000 which Mr. Wever was to receive and from which by the agreement formulated he was required to satisfy the bills, and Mr. Wever insisting that the bills should be paid by the defendant in addition to the $25,000; and Mr. Hatch finally said that “ we ” will pay the bills. If this can be said to be a final contract at all it seems to me it was clearly an obligation which would be part of the terms of the settlement and to be included in the final contract that was to be made, and not an independent or supplemental contract imposing upon the defendant an obligation to
I think the second ground relied upon by the plaintiff also precludes a recovery. It seems to have been conceded and the court below charged the jury that Mr. Hatch had no express authority-to make any final contract in relation to this settlement nor did he pretend to have such an aiithority. The court, however, submitted to the jury the question as to whether there had been conferred upon Mr. Hatch an apparent authority to make such a contract and the "verdict of the jury is based upon such an apparent or implied authority. I can find no evidence to sustain such a finding. Mr. Hatch made no representation that lie had any power to finally agree upon anything during these negotiations, and upon this evi
Mr. Hatch was called as a witness for the plaintiff, and testified as to his conversations with the attorney for the defendant’s wife, out of which this controversy arose. There is not one word of his testimony to justify the inference that he ever had express authority to make such a contract, or of any act of the defendant or any other party to the agreement that would justify the inference of such authority. Mr. Hatch ■ testified that he had sundry conferences with Mr. Wever, of the firm of Marsh, Winslow & Wever, in regard to the adjustment; that on November 12, 1906, lie brought to the office of Marsh, Winslow & Wever the proposed separation agreement; that he had nothing to do with the preparation of this' written agreement, but had received it from Mr. Frank H. Platt representing the defendant. When asked what his relations with the defendant were he said that he assumed -he repre-' sented the defendant; that Frank IT. Platt was the man he negotiated with; that he never had the slightest tionversation with the defendant about these bills; that his negotiations in relation to them were with Mr. Frank IT. Platt; that he originally received from' Mr. Wever a written memorandum jotting down the heads of the bases upon which the parties might reach a compromise; that memorandum the witness gave to Mr. Frank IT. Platt, and from that memorandum this agreement was drawn up by him; that he paid no attention to drawing up the agreement, but received from Mr. Frank IT. Platt the agreement drawn up and that was all the authority he had in relation-to these negotiations; that he “ handed all these matters over to . Mr. Frank Platt, and he prepared this agreement, and when he got it in shape to suit him that suited me, and I knew that he knew enough to prepare an agreement, so I didn’t think I needed .to bother myself with it. And I took that agreement with me to Winslow & We ver’s office that afternoon;” that lie took that agreement with him from the office and left for Buffalo and sent it back from Buffalo to Mr. Frank IT. Platt, giving
It is entirely clear that Mr. Hatch under his original retainer to represent the defendant in the divorce action had no authority to make a contract binding the defendant to pay a sum of money to his wife. (Bush v. O'Brien, 164 N. Y. 205; Lewis v. Duane, 141 id. 302.) The defendant had conferred upon Mr. Hatch no apparent authority to do anything beyond what could be implied from his original retainer to defend the divorce action. He did nothing that could justify any one dealing with Mr. Hatch in assuming that Mr. Hatch had any other or further authority. Mr. Hatch assumed no authority to make a final contract, but only to negotiate upon the basis of the proposed typewritten agreement submitted. As was said in Edwards v. Dooley (120 N. Y. 540): “ While a principal is bound by his agent’s acts when he justifies a party dealing with his agent in believing that he has given to the agent authority to do those acts, he is responsible only for that-appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent.” The case of Diamond Soda Water Co. v. Hegeman & Co. (74 App. Div. 430) does not apply, as in that case the contract that was made was a part of an oral contract for a settlement where the principal had accepted the settlement made on his behalf by an agent and was held bound by all of the agreement that the agent made. That case would be analogous if this clause that the plaintiff seeks to enforce was in a written agreement which Mr. Hatch had assumed to sign on behalf of the defendant and the defendant had accepted the benefits of the agreement made for him by his agent. He would be then bound by its obligations. But in this case the written agreement had been proposed by the defendant or his representatives and executed in reliance upon the fact that the defendant was limiting his liability to that expressed therein, and his liability cannot be extended because of unauthorized statements made without his knowledge or authority when the subject was itself covered by the written agreement executed. In Diamond Soda Water Co. v. Hegeman & Co. (supra), the client had constituted the attorney his agent to settle and compromise a pending action and it was because of that author
It follows that the judgment appealed from must be reverséci and a new trial Ordered, with costs to the appellant to abide thei' event;. - -
McLaughlin, Clarke and Houghton, JJ., concurred; Patterson, P.J., concurred on first ground.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.