Bizzell v. Auto Tire & Equipment Co.

• Decision Date: 05 October 1921
• Docket Number: 112.
• Citation: 108 S.E. 439,182 N.C. 98
• Parties: BIZZELL v. AUTO TIRE & EQUIPMENT CO.
• Court: North Carolina Supreme Court

108 S.E. 439

182 N.C. 98

BIZZELL v. AUTO TIRE & EQUIPMENT CO.

No. 112.

Supreme Court of North Carolina

October 5, 1921

Appeal from Superior Court, Wayne County; Lyon, Judge.

Action by K. E. Bizzell against the Auto Tire & Equipment Company. Judgment for plaintiff for an amount less than the verdict was set aside, and the original verdict restored, and both parties appeal. Modified on defendant's appeal, and affirmed on plaintiff's appeal.

Though a lease provides that the landlord may increase the rent at any time on notice, it cannot be held as matter of law, in summary proceedings in ejectment under the Landlord and Tenant Act, that plaintiff is entitled to judgment for an increased rental in accordance with notice, where defendant contends and shows by evidence that there was a contract subsequent to the lease, whereby defendant, in consideration of the making of improvements, was not to be disturbed in his possession for the term of one year, which term had not expired.

Summary proceedings in ejectment under the Landlord and Tenant Act (C. S.§§ 2341-2376), instituted before a justice of the peace, carried by appeal to the county court of Wayne county and thence to superior court of said county, where it was tried before his honor, W. A. Devin, judge, and a jury, at November term, 1920. On the trial, plaintiff offered in evidence a contract of rental of the property to defendant at $57.50, for month beginning January 19, 1920; said contract containing, among others, the following provision:

"The party of the first part hereby reserves the right to raise the rent at any time, and it is further agreed that, if any part of the rent hereinbefore mentioned shall not be paid at the time agreed upon, although no demand shall have been made for same, the parties of the second party hereby contract and agree that this agreement shall serve as notice to vacate the premises within three days of such failure."

Defendants occupied under said lease, paying the stipulated rent till June 9, 1920, when plaintiff caused to be served on defendants a written notice to the effect that, if defendants should hold over "for one day after June 18, they would be held legally responsible for rent at $150 per month." Defendant alleged, and offered evidence tending to show, that subsequent to the written lease above referred to, plaintiff and defendant had mutually entered into a further agreement to the effect that if defendant should put certain specified improvements on the premises amounting to near $2,000, and which had been done, defendants would be allowed to keep the premises for at least one year, and that the rental should at no time be raised higher than $75 per month. The witnesses all testified that a fair monthly rental for the property would not exceed $60.

The jury rendered the following verdict "(1) Is plaintiff entitled to recover possession of the store building described in plaintiff's affidavit?

Answer Yes.

(2) In what amount is defendant indebted to plaintiff for rent of said building?

Answer: $111.66 2/3 per month."

His honor ruled, and so instructed the jury, on the second issue that, if first issue was answered for plaintiff, she was entitled to recover a fair monthly rental for the property. On the rendition of verdict and motion by defendant to set same aside, the court as against the weight of the evidence intimated that he would set aside the entire verdict as against the weight of the evidence, unless the plaintiff would consent to reduce the amount of the verdict to $60 per month. Thereupon, in open court, plaintiff's attorney consented, without being authorized to do so by his client, that the monthly value of the building as found by the second issue, be reduced from $111.66 2/3 to $60, and judgment was thereupon entered for $60 per month for the time building was occupied after notice, etc., said judgment reciting that plaintiff consented to same.

Defendant insisted on his position, and excepted and appealed from judgment as rendered, but same was not perfected. Plaintiff did not appeal, and made no motion in the case at November or at the January term of the court, but at April term, 1921, before his honor, Lyon, judge presiding, moved to set aside the judgment on the ground that the attorney acted without authority and contrary to their express instructions in consenting to a reduction of the verdict. On affidavits submitted, the court finds that said consent was given without authority; that but for said consent the judge presiding would have set aside the entire verdict. The court on his findings adjudged that the former judgment of Judge Devin be set aside, but, being of opinion that he was without authority to disturb the verdict of $111.66 2/3, this being at a term subsequent to term when same was rendered, entered judgment for plaintiff for the amount of the original verdict and both plaintiff and defendants appealed.

Hood & Hood, of Goldsboro, and Rouse & Rouse, of Kinston, for plaintiff.

E. M. Land and Dickinson & Freeman, all of Goldsboro, for defendant.

Defendant's Appeal.

HOKE, J. (after stating the facts as above).

It is very generally understood, uniformly so far as examined, that an attorney at law, by virtue of his employment as such in a given case, has the control and management of a suit in all matters of procedure, and, in the absence of fraud and collusion, can make such stipulations and agreements as may commend themselves to his judgment, in so far as they may affect the remedy he is endeavoring to pursue. Chemical Co. v. Bass. 175 N.C. 426, 95 S.E. 766; Gardiner v. May, 172 N.C. 192, 89 S.E. 955; Harrill v. Railroad, 144 N.C. 542, 57 S.E. 382; Westhall v. Hoyle, 141 N.C. 338, 53 S.E. 863; Hairston v. Garwood, 123 N.C. 345, 31 S.E. 653; Henry v. Hilliard, etc., 120 N.C. 479, 27 S.E. 130; 2 R. C. L. tit. "Attorneys," § 63. Under the principles stated it is held in many decisions on the subject that an attorney may consent to a judgment against his client, and the same will be considered as binding, although no actual authority is shown. Under ordinary conditions an implied authority is presumed from his office and employment. Harrill's Case, supra; Stump & Sons v. Long, 84 N.C. 616. And see numerous authorities to this effect in editorial note to Tobler v. Nevitt, 45 Colo. 231, 100 P. 416, 23 L. R. A. (N. S.) 702, 16 Ann. Cas. 925, appearing in 132 Am. St. Rep. at page 162.

It is also fully recognized that an attorney, by virtue of his office and ordinary employment in a case, has no implied power to compromise his client's cause of action, or to enter into stipulations or agreements which sensibly impair such client's substantial rights and interests presented and involved in the litigation. Moye v. Cogdell, 69 N.C. 93; Gibson v. Nelson, 111 Minn. 183, 126 N.W 731, 31 L. R. A. (N. S.) 523, 137 Am. St. Rep. 549. And see concurring opinion of Walker, Judge, in Chemical Co. v. Bass, 175 N.C. 426, 95 S.E. 766, the same containing a helpful discussion and full citation of cases on the subject. Though it is sometimes said that the weight of judicial opinion is in favor of upholding consent judgments, entered under the implied powers of an employed attorney, some of the decisions referred to have been subjected to adverse comment by intelligent writers as trenching upon the second position stated, that an attorney may not without express authority enter into a compromise of the cause of action committed to him, and the...