*1 The order of new trial as to defendants Baltimore Company, A. Ohio Railroad Lee an in- Hanser, trading Company, dividual as Hauser Construction L. Raymond E. Winter Inc. and Concrete Pile Com- Co., pany judgment granted in is here reversed; favor Lee A. and the record remanded with direction Hauser, judgment to the court below enter on the verdicts Company favor Baltimore and Ohio Railroad plaintiff and L. E. Winter and in Inc., favor of Co., Prank Same for and in favor of Walter C. against Raymond Maddox for $2,500 Concrete Pile Company. Appellant,
Yarnall, v. Yorkshire Worsted Mills. Argued Before 9, 1952. J., Stern, C. Drew, JJ. Chidsey Bell, Stearne, Musmanno, *2 Rocap, N. him Edward and James with Robertson, Rocap Rocap, appellant. & for him H. Ward Hinkson,
Gilbert W. J. Oswald, appellee. Segal and & for Schnader, Lewis, Harrison, Opinion 1952: Mr. Justice April 1, Chidsey, May stipulation settling On in re- a a suit 3, 194-9 plevin signed by then for was entered into appellant approved by appellee and for and Judge County. Appellant President Ervin of Delaware January 1951 filed a to set aside this 12, stipulation reopen granted. and the case and a rule was previously On 1951 the rule which was granted being was refused without an or a answer filed hearing appeal held. This followed. allegations
Prom the in the and record papers following appear. facts On October replevin by appellant an action in was instituted against appellee posses- for 12 looms which were in the Separate damages sion of the latter. counts and accounting complaint. for an were also asked in the production requesting After a of certain appellee books and records of the case dismissed, proceeded came on for trial and after trial had stipulation a the above mentioned time, was executed. Under the terms Avasto upon payment within receive one week $5,000 appellee days to the within 90 $25,308 was to receive pay the looms. If, however, did not such amount days, property within looms were become the appelleé. his petition alleges that his counsel told him that he Avas threatened with a nonsuit and- that appellee “for and the $5,000.00 offered to settle machin- ery”; recommendation upon of his counsel he such agreed that his counsel told him to offer; go a restaurant where they time met; for the first time “. . . the stipulation saw and on the same day voiced his re- the sum paying quired for the machinery loithin 90 and that days”; check $5,000 was received counsel and cashed “'against directions” and that of such [his] amount was turned over him.
About two weeks after the trial petitioner wrote to the trial judge requested conference with regard settlement but did not include in such letter any objections to the or *3 of his counsel to execute it. He later withdrew his for this request conference.
The next action taken by appellant January on 27, months 1950, eight when with later, new (present) he filed a acting petition to set aside the settlement and reopen the case on the grounds that an testimony given by officer of the defendant (called for cross-examination) “approached perjury.” The lower court after answer denied this on March 8,1950, was done nothing by appellant until 1951 when for the first time appellant that his alleged original did not have authority to enter into the stipulation.
Several
significant
conclusions appear
from this
of
summary
the facts. Appellant hnew the terms of
the stipulation shortly after
it was signed by his at-
torney and approved
trial
At that
judge.
time
his only alleged objection was “paying
sum re-
quired for the
within
90 days”.
Despite
he elected to
dissatisfaction,
take the net
of
proceeds
.
when
his counsel
them
gave
to him. He
waited
eight months before he filed
formal
any
any
objection,
of
lack
did not claim
time he
which
delayed
attorney.
part
He then
of his
stipu-
finally repudiated more
he
ten months
before
twenty
knowl-
months after admitted
lation. This was
any
allegation
edge
that at
no
of its terms. There is
filing
here involved
time before the
agreement to the
communicated
disavowal
appellee.
court
such circumstances the lower
Under
refusing
agree
the rule and
with the
was correct
we
opinion
it
"...
a careful consideration
when
states,
indi-
filed
as the basis for the rule,
herein,
necessary
neither
nor desirable.”
cated that a rule was
attorney’s
if
A client
act
he does not
ratifies his
repudiate
promptly upon receiving knowledge
attorney
authority.
Baumgart
has exceeded his
Whinney,
Superior
ner v.
Pa.
Ct.
39 A. 2d
167, 171,
attorney
power,
court
an
no
said, “True,
has
express
compromise
authority,
the absence of
or settle
Township
his client’s claim. North Whitehall
v. Keller,
ratify
attorney’s
may
In addition his accepted the of the settlement benefits with full knowl- edge principle terms. It is a fundamental its ratify agency that such action is an law ©f election to 97 the unauthorized act and that such election principal is bound: Commissioner v. Neel, Insurance 44 A. Pa. 2d Blum 201, 204, 205, Crittenden, 558; berg Company, v. Broad Street Trust 329 Pa. Presbyterian A. v. Board Pa. 27; Gilbee, 310, 314, repugnant 61 A. Court where this “It is said, every justice dealing principal and sense of fair that a agent’s shall avail himself of the benefits of an act, repudiate authority.”; at the same time Restatement, Incorporated Agency, Cf. Sections 98, 99; Gum, 341 Pa. A.2d Felton, 386. 96, 17 appellant’s petition The averments of taken in con- nection with the record facts before the Court fail grounds prayed forth set relief for. theOn affirmatively appeared contrary, therefrom that was not entitled to have the set aside. Under circumstances the lower court did not disposing abuse its discretion in of the rule without hearing. refusing appellant’s
The order the rule is affirmed at cost.
Dissenting Opinion by Mr. Justice Musmanno: I grant would reverse the lower court’s refusal here) petitioner (appellant a rule to cause show why attorney entered into in his absence should not be set aside. All that the opportunity stipula- asked for was an to show that the question tion was made without from rights not accord did or intentions. grant The lower court’s refusal to the rule to show cause and this Court’s affirmance of his refusal will litigation enshroud the forever this case with doubt justice litigant pleading as to whether denied a appellant, for a chance to be heard. The pe- in a sworn *5 lawyer that at a conference between his tition, averred company’s lawyers, (held room in a the defendant Court) adjoining the defendant the officers of appel- apparently present corporation but that the were appellant further The admittance. lant was denied during a absence, in that, averred entered into and was in restaurant him until later on a not exhibited to was very day voiced and that on asserting represent stipulation, not he had it did what agreed also declared that the The to. paid by willing defendant, return stipulation and set aside the settle- if would the Court ment. is the statements this action concerned, far as
So accepted in must be made they denied to and were not were sworn true since as did not even the defendant fact, the defendant. petition. The court, an answer lower with- file petition, receiving any con- without answer out conducting any any hearing ducting and without inquiry, the rule the declaration refused with recorded “present appellant’s be due satisfaction readily salable that his to the fact strange phrase hoped.” “May be due” is a as he had upon supposed to be a decision which is based court’s language It also sardonic established facts. definitively the doors of the courthouse shut which to litigant. the face of a judge certainly possible, for a
It is excusable, appraisal adduced before in his of evidence to err guess for a court to when facts, it is intolerable but conclusively. simple hearing There can them establish conjecture groping in the darkness of is no excuse simple lifting reveal blind will when a reality. circumstances *6 appellant suggest, seems as tlie lower court to the
If, punc- litigious, hearing merely is would have short pretensions. possible tured of But the balloon his it is thought despite of the court have whatever that, appellant person, may imposed the as a he have been upon in the settlement of his which settlement lawsuit, presence place took outside never his and which he signed. bankrupt a moral be Even can the of an victim design plot intentional or or of an is and he accident* day in court. entitled to April
On the lower court said: Court “The 23,1951, opinion plaintiff object is the that the not did of perfectly settlement until found satisfied money repurchase that he could raise the to the machinery.” (Emphasis supplied) be There can no question Judge the learned below believed opinion be true to or he would not have stated but it, unfortunately nothing there in the record to sub- hearing placed A stantiate surmise. could have prop bough the of substantiation under the of his hearing but without a surmise, the surmise falls ground emptily. the majority says
The decision this Court appellant agreed to a settlement of “$5,000 and the appear machinery,” agreed but nowhere does it that pay to a settlement $25,308.00 pay and that he was enormous sum within 90 days. majority opinion
The states that the has guilty asserting tardily any effect been laches in inequity in the settlement (whose but the denied) peti- were assertions never declared he, day stipu- voiced tioner, the same signed, lation was and further that he directed his attorney not to cash the check Also received. ready that he stands to return the $5,000. appel- present for the argument,
At the oral delayed filing the explained that he had lant to embarrass hesitant he was because (the previous had made the settle- one who )ment. attorney’s Scylla present of his
And between so, Charybdis attorney, the-previous and the deference (which defendant deference court’s of the lower persecuted) being has believed open irresolute indecisive, sea of into the out drifted *7 adjudication. indefinitive Borough. Taylor, Modena Appellant, Argued Before 1952. C. J., Drew, JJ. Chidsey Bell, Musmanno, Stearne, Stern,