Smith v. Abbott
109 N.E. 190
Mass.
1915
Check Treatment
Braley, J.

The plaintiff’s cause of action rests upon the paroi agreement alleged to have been made by the plaintiff, the lessee, with .Charles H. Tyler, Esquire, acting as counsel for the lessors when the lease was determined for nonpayment of rent and the premises were surrendered. By the re-entry which followed the plaintiff’s leases to subtenants would at once terminate, and, even if they attorned to the owners, the plaintiff would become liable in damages for breach of the covenant for quiet enjoyment. Casassa v. Smith, 206 Mass. 69.

It was to protect himself from this liability that in consideration of the surrender, as he testified, the agreement of indemnity was entered into, and for the purposes of decision his testimony may be taken as true, as the jury could have believed him notwithstanding the evidence in contradiction introduced by the defendants.

But if, without deciding, it is assumed that what was said during the negotiations could be found to be an unqualified promise to indemnify and save the plaintiff harmless from liability to the sublessees, and the judgment recovered by one of them in Casassa v. Smith, 206 Mass. 69, after the lessors had been properly vouched in to defend, entitled the plaintiff to sue for damages, they never became bound unless Mr. Tyler was authorized to make the contract in their behalf. The lessors and owners in making the lease and in the collection of the rent and the management of the premises acted through Gordon Abbott, their duly appointed attorney. And from his evidence the jury could have found that the respective powers of attorney from the defendant, Ellen M. Abbott and Elizabeth S. Bangs, since deceased testate and of whose will Gordon Abbott is executor, which were given after the date of the lease, “were practically a duplication of the earlier powers” of attorney, copies of which are part of the record. It would follow from this finding and an examination of the copies that the power of attorney under seal, given by him in their joint names to Charles E. Cotting, while in accordance *330with the instrument of Bangs, permitting him to "appoint one or more substitutes under him,” was unauthorized as to Ellen M. Abbott by whom no power of delegation had been conferred. The trust and confidence reposed in him by the terms of the power, where he was to exercise his discretion and judgment in the performance of his duties, could not be delegated to another without the consent of his principal, unless from the nature of the agency it appeared that the parties contemplated that the employment of subagents would be necessary; a condition which, does not appear in the case at bar. Appleton Bank v. McGilvray, 4 Gray, 518, 521. Dorchester & Milton Bank v. New England, Bank, 1 Cush. 177.

But having been given full authority by each principal to manage and convey the property, and if necessary to terminate the lease for breach of condition, the jury also could find from his evidence that upon being informed of the plaintiff’s failure to pay the rent, which had fallen into arrears, he directed Cotting to employ counsel, “to try and collect the back rent, and, failing the success in that, to terminate the lease.”

It is undisputed that Cotting accordingly retained Mr. Tyler, by whom an action of ejectment was brought in which judgment, with the plaintiff’s consent, was not obtained until after the premises had been surrendered, under the agreement for termination, indorsed on the lease and executed by the plaintiff and the lessors through their attorney, Abbott.

While the jury could have found from the plaintiff’s evidence that Mr. Tyler informed Cotting of the negotiations and the proposed agreement, yet it is plain that Cotting could not empower Mr. Tyler to bind the lessors. Nor could the counsel under his retainer make an executory contract of indemnity in the nature of a compromise of their demands which would be binding on his clients. Lewis v. Gamage, 1 Pick. 347. Shores v. Caswell, 13 Met. 413. Riley v. Boston Elevated Railway, 195 Mass. 318, 322. Pomeroy v. Prescott, 106 Maine, 401. 21 Ann. Cas. 574. See note, page 577, for a full collection of cases.

The lessors’ right to possession and the termination of the lease did not depend upon the making of the agreement, but upon the proceedings in ejectment to which the plaintiff at the time of the agreement admitted that he had no defence. It was not *331even a step in the regular course of litigation, of which the giving of a bond of indemnity in the client’s name to an attaching officer, or to a third party as security during the action, are illustrations. Ford v. Williams, 13 N. Y. 577, 586. Swartz v. D. S. Morgan & Co. 163 Penn. St. 195. Clark v. Randall, 9 Wis. 135. Compare White v. Davidson, 8 Md. 169.

But as an unauthorized agreement or compromise may be ratified by the client, the plaintiff contends that the letter of his attorney to Gordon Abbott, nearly six years after the transaction had been closed, reciting the agreement and the conditions under which it was made was admissible as proof of ratification. Cohen v. Jackson, 210 Mass. 328. The jury undoubtedly could have found that the letter was in response to Abbott’s request made after an interview with the attorney when he stated his client’s demands. But neither Abbott’s failure to answer this letter, nor the reply acknowledging its receipt and referring the writer to counsel, written by Cotting, because of Abbott’s absence from the country, to the second letter requesting an answer, is evidence of an assent to the self-serving declarations found therein supporting the plaintiff’s claims. Perry v. Pye, 215 Mass. 403, 411. Pye v. Perry, 217 Mass. 68, 71, and cases there cited. The letters were not in the nature of mutual correspondence between the parties concerning the transactions in dispute, in which their respective claims were stated and admissions made, as in Stone v. Sanborn, 104 Mass. 319, Thomas v. Wells, 140 Mass. 517, and Buffum v. York Manuf. Co. 175 Mass. 471, cited by the plaintiff.

The record moreover does not show that with knowledge of what had been done the lessors, or their attorney, Abbott, accepted the benefits which might be derived from a surrender. If this appeared, there would have been evidence for the jury of acquiescence. Huston v. Mitchell, 14 S. & R. 307, 309, 310. The action of ejectment, as we have said, was pending, and there is no evidence that when Abbott signed the indorsement he had been informed of the negotiations,'or of the agreement, and Cot-ting’s knowledge could not affect the lessors.

To the plaintiff’s remaining contention, that by accepting the surrender the defendants as matter of law became bound as assignees of the term to protect the plaintiff from liability to the *332sublessees, the short answer is that the declarations contain no count upon the alleged cause of action. It is apparent, however, from the plaintiff’s own evidence and the indorsement, which is not impugned, that the premises were surrendered and the lease was not assigned.

But even if susceptible of the plaintiff’s interpretation, the agreement, not having been in writing, had only the force and effect of an estate at will and therefore it cannot operate as an assignment. R. L. c. 127, § 3. Sanders v. Partridge, 108 Mass. 556, 559.

By the stipulation of the parties judgment in each case is to be entered for the defendant.

So ordered.