74 N.J. Eq. 828 | N.J. | 1908
Lead Opinion
The opinion of the court was delivered by
This is a bill for an injunction filed by the Trenton Street Eailway Company to restrain William T. Lawlor from prosecuting a suit at law against the company for personal injuries and to compel him to perform and carry out an agreement of compromise of the suit alleged to have been entered into by him for a valuable consideration.
The learned vice-chancellor, before whom the case was heard, advised a decree, which was made, granting the relief sought, having found from the evidence that an agreement of compromise had been made whereby the railroad company was to pay and Lawlor was to receive $1,850 in full settlement. From that decree Lawlor appeals to this court.
It appears from the testimony taken before the vice-chancellor that Lawlor brought an action' against the railway company in the supreme court to recover damages for injuries, received while in the act of alighting from one of its cars. That on October 26th, 1906, the suit came up for trial at the Burlington circuit, and on that day the counsel of the railway company, with Mr. Hurley, its general manager, and their witnesses, went to Mount Holly to try the cause. Upon reaching Mount Holly,
It was understood between counsel for the company and the attorney of Lawlor that a release was to be prepared by the former, to be executed by Lawlor and the money then paid. The release was immediately prepared and sent to Mr. Budd, but Lawlor repudiated the settlement, refused to sign the release, and engaged other counsel who was later substituted as attorney of record. The new counsel, having caused the plaintiff’s declaration to be amended in a particular of no importance so far as the present inquiry is concerned, the railroad company at first pleaded accord and satisfaction, but later, upon the plaintiff’s again noticing his case for trial, the railroad company filed this bill.
The defendant, Lawlor, on his appeal asserts that the proofs fail to show any agreement of compromise. We think they show an agreement to compromise for $1,850. But the defendant further contends that it does not appear that the agreement actually made by the railroad company’s attorney was made by its authority. We incline to' think it does. It was proved to have been made by the authority of Mr. Huxley, who testified that he was the general manager of the company. The defendant argues that this may have been true at the time the witness testified, but that there was no proof that he held such office at
It is further contended by the defendant that the defendant did not agree.to the settlement. We think he did.
It is, of course, the general rule that an attorney without special authority is not authorized to compromise his client’s claim. There is, however, no objection to giving an attorney special authority to compromise, in which case the attorney in agreeing to the compromise would bind the client. Phillips v. Pullen, 50 N. J. Law (21 Vr.) 439.
In this case the evidence clearly shows that Lawlor gave Mr. Budd, his attorney, authority to settle for $1,850.-
The contention of Lawlor that he was coerced or otherwise unfairly treated by his attorneys is not supported by the evidence.
But it is contended that the testimony of the authority of Mr. Budd, coming as it does from Mr. Budd and Mr. Atkinson, the attorneys of Lawlor, is not competent proof, -because it was a privileged communication between attorney and client. We think it was competent. The authority given by Lawlor to his
Again it is argued that there was no sufficient consideration for the compromise. We think there is no merit in the argument. The only elements necessary to a valid agreement of compromise ai’e the reality of the claim made and the bona fides of the compromise. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made. Grandin v. Grandin, 49 N. J. Law (20 Vr.) 508. The agreement in question was undoubtedly so' made.
It was further suggested at the argument that this was not a case for equitable relief, it being contended that the agreement of compromise could be set up as a defence under a proper plea in the action at law. We think this is not so. The agreement for compromise remains unexecuted, the defendant having refused to accept the money and repudiated his contract. It is, therefore, an accord unexecuted. An accord that is unexecuted is not an available defence at law against the original cause of action, but it may, in a proper case, become available as an equitable defence thereto. Headley v. Leavitt, 65 N. J. Eq. (20 Dick.) 748. In that ease Mr. Justice Pitnej^, at the trial at circuit, refused to permit such a defence to be interposed, on the ground that the accord was unexecuted and that fact was held by this court to justify the filing of a bill in chancery to restrain the plaintiff from further prosecuting her suit at law until she agreed to permit the defendant to take advantage of the contract which he had subsequently executed, this court thereby recognizing that the unexecuted contract, although it constituted an equitable, did not constitute a legal defence. Headley v. Leavitt, 68 N. J. Eq. (2 Robb.) 591.
We think the present a proper case for equitable relief. The agreement of compromise was lawful in character in its inception, and, as we have pointed out, may be a good defence in
Again it is contended that complainant is not entitled to relief because there was no tender of the money. But a tender to one who announces in advance that he will not accept it is unnecessary. Thorne v. Mosher, 20 N. J. Eq. (5 C. E. Gr.) 257.
Nor is there any merit in the suggestion of the defendant that the complainant is in laches by filing a plea of accord and satisfaction to the amended declaration and waiting until notice of trial before filing its bill. The testimony shows that the position of the complainant, with respect to the agreement of compromise and its effect, was consistent throughout, and that it acted with reasonable promptness in filing its bill.
The decree appealed from awards a perpetual injunction restraining Lawlor, the defendant, from prosecuting his suit at law against the complainant, and orders that he perform the agreement of compromise, and accept the sum of $1,850 from the complainant in full settlement of the suit. Such is not the precise form in which the decree should be drafted. It should provide that, upon the complainant paying into court, for the benefit of the defendant, the sum of $1,850, the defendant be perpetually enjoined from prosecuting or proceeding in his suit now pending in the supreme court against the complainant, or any other suit in that or any other court for the same cause of action.
Eor the purpose of such modification the decree must be reversed and the record remitted to the court of chancery.
Dissenting Opinion
(dissenting).
I agree with the court that the decree in this case should be reversed, but, in my judgment, the opinion does not go far enough in directing a modification. I think the failure of the complainant to tender itself ready to fulfill the contract made by its attorneys, by which the defendant was to receive $1,850, is fatal to its claim for relief. The defendant never contracted that the case should be settled for $1,800 only. If, however, this difficulty could be overcome by imposing terms upon the plaintiff that it should ratify the contract made by the attorneys, I think the decree to be made should be the same as was made in Headley v. Leavitt, 68 N. J. Eq. (2 Robb.) 591, and that the appellant should be restrained unless he will consent that the appellee may set up the alleged contract as a defence by way of accord and satisfaction, leaving it to the jury to determine whether there was such a contract, and depriving the appellant only of the right to object that the accord was not followed by a satisfaction.