159 Mass. 39 | Mass. | 1893
Lead Opinion
The evidence that after the former verdict the witnesses Watkins and Potter signed affidavits of their knowledge of facts upon which the motion for a new trial was founded, to the same effect as their testimony given at the last trial, was rightly excluded. The defendant could not add force to' their testimony by showing that they had made the same statements a long time before. If there had been evidence from which the plaintiff could properly have argued that their testimony was manufactured just before the trial, a different question would be presented. But there was nothing on which to raise such an issue. If the jury were informed that these witnesses did not testify at the first trial, any inference to be drawn from that fact could be met without giving their former statements. Murchie v. Cornell, 155 Mass. 60.
The principal question in the case relates to the admissibility of a letter written to the defendant by a clerk of the plaintiff’s attorney, under authority from the attorney, purporting to state the facts on which her claim was founded. The bill of exceptions sets forth two letters written to the defendant by this clerk, two written to the attorney by the executive secretary of the defendant, and one afterwards written to the defendant by the attorney with his own hand. The first two, written by the clerk under authority from the attorney, were first offered, then testimony was introduced, and the defendant offered the letter from the attorney to the defendant, “ and also the letters of the defendant to Mr. Carroll,” the attorney, and exceptions were taken to the refusal to admit them. It is clear that the defendant was not entitled to introduce the entire correspondence, for it contains statements of the executive secretary favorable to the defendant, which were not competent. Perhaps, also, the last letter of the plaintiff’s attorney which he wrote with his own hand was inadmissible as containing opinions and comments which were strictly personal and outside of the scope of his employment. It is contended that the only question open to the defendant is whether the entire correspondence was competent, but we are of opinion that the question whether the first two letters were competent was intended to be saved by the bill of exceptions.
The undisputed evidence tends to show that the attorney had been employed' to represent her in the collection of a claim against the defendant for damages resulting from a fall in the defendant’s railroad station at Hartford. The terms of his employment do not expressly appear. But a fair inference from the evidence is that he was not merely employed to bring a suit, but was authorized to present the plaintiff’s claim, and to endeavor to obtain a settlement of it without a suit. If this was his authority, we have no occasion to consider the cases holding that admissions which are mere matters of conversation with an attorney, though they relate to the facts in controversy, cannot be received in evidence against his client. Such admissions are not within the scope of his employment. Nor have we any reason to consider in this case the general authority of an attorney, by virtue of his position as an attorney at law, in charge of a suit, to bind his client by agreements in reference to the management or disposition of the suit. See Lewis v. Sumner, 13 Met. 269; Saunders v. McCarthy, 8 Allen, 42; Pickert v. Hair, 146 Mass. 1. The maxim, Quifacit per alium facit per se, applies as well to acts done or statements made by an attorney at law as by any other agent. The act of a party done by his agent may always be proved against him if material.
An attorney or agent employed to present and collect a claim is impliedly authorized to state to the debtor what the claim is. The plaintiff could not have expected that her attorney would collect her claim from the defendant on demand, without stating the nature and particulars of it, so that the defendant could understand it, and make investigation in regard to its validity. It was as much a part of his duty to state as nearly as possible the precise place in the building where the accident happened, if asked to, as to state in. what town or State the
There is nothing in the adjudication in Pickert v. Hair, 146 Mass. 1, nor in the language of the opinion as applied to the matters then under consideration, which is at variance with the views above stated.
The letters are not inadmissible as part of an offer to compromise a controverted claim. At the time they were written there had been no intimation on the part of the defendant that the plaintiff would not be paid all that she thought it right to ask. The only communication which had been received from the defendant indicated a desire to ascertain the truth, as if for the purpose of promptly paying the claim if it appeared to be valid. jExceptions sustained.
Concurrence Opinion
I am unable to concur in the opinion of the majority of the court.
If it is assumed that the question of the admissibility of the first two letters written by the clerk of the attorney for the plaintiff is open on the exceptions, a point which is not free from doubt, and if it is also assumed that the evidence sought to be introduced is material, a point about which there is also a doubt, as the evidence for the plaintiff tended to show that there
There was no evidence that the letters in question were written by the direct authority of the plaintiff, or by her consent, or even with her knowledge. There was no evidence that at the time of the accident Mr. Carroll was the plaintiff’s attorney; and he could have had no personal knowledge on the subject, as it appeared that he was retained as an attorney at law after the accident by the plaintiff’s husband, and did not see her until less than two weeks before the first trial of the action, which was long after the letters were written.
In Pickert v. Hair, 146 Mass. 1, the question as to the effect of an admission made by Mr. Thayer, an attorney, after an action brought, but before the beginning of the case then before the court, was considered. One of the grounds of the decision was thus stated on page 5: “ The admission was not made by Mr. Thayer for the purpose of dispensing with any rule of practice, or with the proof of any fact in the trial of the action already brought, or of the actions which might be brought, in reference to the attached property. It was a conversation relating to a fact in controversy, but not an agreement relating to the management and trial of a suit, or an admission intended to influence the procedure in the pending action, or in any other, if the attachment was not discharged.”
In support of these propositions several cases are cited, and an examination of them shows that the doctrine hitherto established is that an admission by an attorney does not bind his client, although it relates to a fact in controversy, unless it is made for the purpose of dispensing with some rule of practice, or with the proof of a fact in the trial of a case, or is an admission intended to influence the procedure in the action. To the same effect are the following cases: Rockwell v. Taylor, 41 Conn. 55. McKeen v. Gammon, 33 Maine, 187. Cassels v. Usry, 51 Ga. 621.
The opinion of the majority of the court apparently proceeds upon the theory that an attorney stands in a different relation to his client before an action is brought from that which he occupies afterwards. But no case is cited which sustains this
With one exception, the cases cited in the opinion of the majority of the court in support of the propositions that an attorney is merely an agent, and that his admission binds his principal, are cases of mere agents, and not of attorneys. They seem to throw no light on the question in this case.
The case of Marshall v. Cliff, 4 Camp. 133, remains to be considered. This was an action against the owners of a vessel. To prove the defendants to be the owners, there was offered in evidence an undertaking in the following form, given before the action was begun by the persons who were afterwards the defendant’s attorneys of record: “ I hereby undertake to appear for Messrs. Thompson and Marshall, joint owners of the sloop Arundel, to any action you may think fit to bring against them.” This was held by Lord Ellenborough to be sufficient evidence. But, as was pointed out by Mr. Justice Parke, in Wagstaff v. Wilson, 4 B. & Ad. 339, the undertaking was “ a step in the cause.”
I am authorized to state that Chief Justice Field concurs in this opinion.
