Maxwell v. Missouri, Kansas & Texas Railway Co.

91 Mo. App. 582 | Mo. Ct. App. | 1902

ELLISON, J.

— Plaintiff sued defendant for damages in the sum of four hundred and fifty-seven dollars alleged to have resulted from defendant’s locomotive setting fire on 'his premises. Defendant made a written offer before the trial to allow judgment to be taken against it for fifty dollars. The offer was not accepted. The trial resulted in a verdict of fifty dollars for plaintiff. Defendant then moved to have its costs, made since the offer, taxed against the plaintiff. The trial court refused the motion and defendant appealed.

The statute (1899) under which the offer was made, reads as follows:

“Sec. 751. The defendant in any action may, at any time before trial or judgment, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within ten days, he may file the offer and an affidavit of notice of acceptance, and judgment shall be entered accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence or commented on before a jury; and if the plaintiff fail to obtain a more favorable judgment, he shall pay the defendant’s costs from the time of the offer.”

I. We held that though the sum sued for may be un-liquidated and not the subject of a tender, as in this case, yet an offer of judgment might be made under that section. Lieurance v. McComas, 59 Mo. App. 118.' And there is no objection now made to the offer. The trial court’s action in refusing defendant’s motion was based on the ground that plaintiff had not been served with the offer. The service was by delivering to plaintiff’s attorney-who made acknowledgment thereof.

II. The question, therefore, is, whether service of an offer of judgment under the statute aforesaid made on the plaintiff’s attorney, is sufficient? We held in Enos v. Railroad, 41 Mo. App. 269, that it was not sufficient. Defendant urges that what was said on this head in that case was obiter dicta. Be that as it may, we are satisfied, on re-examination, that it was correct. An attorney, by reason of his employment in a case, has no authority, as such, to compromise the case. He may dismiss the case, for that may be begun again, and he may dos many other things which will bind the client; but he can not do that which will liquidate or compromise the' cause of action itself. The offer of judgment contemplated by this statute, if accepted, if not a compromise, is at least an interference with the cause of action, and it may wipe out the cause of' action, save a mere nominal sum. So, if the proceeding may all be had with the attorney, the client may find himself ousted of his claim without ever having authorized it.

It will not do to say that notice could be served on the attorney and that tbe plaintiff would still be protected by requiring that he make the affidavit of notice of acceptance to be filed with the offer preparatory to taking judgment. Ror if the attorney can be served with the offer, he could also carry out the remaining parts of the section. There would be no reason to hold him competent as a party to be served with the offer, and incompetent for the other matters preceding ■the judgment.

III. But it appears that the attorney told plaintiff of having received the offer and that plaintiff thereby knew of it. That fact can not help the matter, if we are right in the view already stated. Knowledge is not notice.

We do not consider the cases cited in defendant’s brief as applicable. That of Davis v. Hall, 90 Mo. 659, in the inference to be drawn therefrom is against it. The point made on the services we held to be good in Lieurance v. McComas, 59 Mo. App. 121, is not applicable. The service there was on the plaintiff himself. He refused to take the written offer attempted to be given to him, and said he would not take any paper from the party offering it. The effect of our holding was that where a party refuses to take the paper offered, it was the same as if he had taken it.

IY. We are referred to sections 586 and 590, Revised Statutes 1899, requiring notices to “be served on the party, or his attorney,” and providing that the “party or his attorney” may indorse his acknowledgment of service of the notice. If we concede that the written offer of judgment is a “notice” as contemplated by those sections, yet it will be seen that the first section restricts the right to serve the attorney by the qualification of, “unless otherwise provided by law.” That is to say, unless otherwise contemplated by the law relating to the particular matter in controversy. In this case wo have endeavored to show that it is otherwise contemplated by the statute relating to this subject.

Y. Defendant takes the further position that regardless of an offer of judgment, that considering the admissions in the answer it was entitled to the costs. The answer admitted defendant’s liability for the damages occasioned by the fire, but set up that such damages amounted to less than fifty dollars, but offered to let judgment be entered for that sum. The contention is that the contest between the parties was thus narrowed down to a question whether the damage was more than that sum, and that the result was in defendant’s favor. "We have not been cited to any authority in support of this contention; and we see no reason,' under the well-settled rules of law, for allowing it to be found.

The judgment will be affirmed.

All concur.