Black v. Rogers

• Decision Date: 30 April 1882
• Citation: 75 Mo. 441
• Parties: BLACK, Appellant, v. ROGERS.
• Court: Missouri Supreme Court

75 Mo. 441

BLACK, Appellant,

v.ROGERS.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

This was an action of ejectment between adjoining proprietors brought to determine the right to a strip of land on their common boundary line. A prior action between the same parties for the same land had been terminated by a compromise and the entry of the following order: “Now, at this day, come the parties by their respective attorneys, and the jury herein re-assembles and the trial of the cause is proceeded with. And now at this day this cause is compromised and settled as per stipulation in writing now filed, each party to pay his costs.”

The stipulation referred to was as follows: “This suit is compromised on the following terms: The line between the parties shall be established as follows: Run south from a point thirteen feet west of plaintiff's hedge on north, to the fence of defendants extending from the hedge to township line, thence with said fence to township line. The defendants to pay the value of hedge fence from the half mile point from the north corner to south end of hedge, and to pay plaintiff for the thirteen feet lying west of the hedge, and thirteen east of the fence, so as to make line straight. The whole then to be partition division fences between plaintiff and defendants. The value of the land on west of hedge and east of fence, and the hedge south of the half mile point, to be ascertained by two disinterested persons, one chosen by each, and the two thus chosen to select a third, who shall make a valuation; then each party to pay their own costs, the suit being dismissed. The plaintiff and his tenants to have right of way south or north through any gates used by defendants on their land.” This stipulation was signed by Letcher and Vest, attorneys for Black, the plaintiff, and by Shackelford and Boyd, attorneys for Samuel and James Rogers, the defendants.

The answer in the present case set up this compromise as a defense and prayed for specific performance of its terms. The reply put in issue the authority of Messrs. Letcher and Vest to make the compromise. This issue was submitted to a jury, who found for the defendants. The court adopted the finding, and after a further hearing found upon the whole case for the defendants, and entered judgment establishing their right to the land in dispute, and the right of plaintiff to a private way according to the stipulation, and also directing that each party be allowed to select a disinterested person whose duty it should be, in conjunction with a third person to be selected by them, to make the valuation provided for in the stipulation, and appointing John H. McDaniel, Esq., commissioner, and directing him, in case the parties or either of them should refuse to make such selection, to take an account of the value of the land and the south portion of the hedge by hearing evidence, and to report the same to the court, and further directing that upon the payment of the amount thus ascertained to the plaintiff by defendants, or in case of refusal of plaintiff to accept the same, deposit of same in court for plaintiff's use, then the plaintiff should convey to the defendants the strip of land specified, and further declaring that plaintiff be forever enjoined from prosecuting his ejectment suit, and that said decree operate as a final settlement of the division line between the lands of plaintiff and defendants.

On behalf of plaintiff the testimony was that he had authorized his attorney to compromise upon the basis of a survey made in 1852 of the dividing line; the payment to him of the rents from 1870 of the thirteen foot strip which respondents conceded to be his, and of the rent on the excess of hedge; that he also stipulated for the right of way west of the hedge for himself and tenants; that on these terms he agreed to settle, and sell to respondents all the land west of the hedge and the hedge south from the half mile point; that the survey of 1852 would have given appellant about seven acres west of the hedge; that he did not hear what passed between counsel while effecting the compromise, nor was he near enough to do so, and did not hear the agreement read; that he did not hear the announcement in court that the case was settled; that when he did hear, for the first time, on the street, that the case was settled, he supposed it was upon the terms authorized by him; that he obtained a copy of the settlement, took it home with him and read it that night, was astonished that neither the survey of 1852 nor the rents of the land and hedge were mentioned; that the next morning he rode into Marshall and urged his attorney, Mr. Letcher, to have the judgment set aside. Mr. Letcher testified that he said to appellant in reply that as the matter had been arranged between Mr. Vest and Mr. Shackelford, and the latter was gone, he did not see how anything could be done before the next term of court, at which time the case would come up, the stipulations according to his view providing that the terms were to be carried out and that the suit was to be dismissed.

The testimony on behalf of defendants was, in substance, that the first action came on for trial on the 13th day of October, 1877, and progressed until the adjournment of the court on the next day for dinner; that before the court met again, Mr. Vest, in the court room, made to the counsel for defendants an overture of compromise, who proposed some modification, to which Vest replied that he would see his client about it, and he did go into the back part of the room and hold a conversation with him. He returned and said his client wished the privilege of passing over a road that defendants might keep open west of the hedge, and would agree to the compromise. The agreement was then written and read. Some of the witnesses testified that plaintiff was present at this time within a few feet, near enough to hear; and that he afterward said, on the same day, that he was glad the matter was settled, that he was all the time willing to compromise, but that respondents would do nothing. When the court met after dinner, Mr. Vest announced publicly that the case had been settled as per written stipulations, which he then filed.

Davis & Cooney for appellant.

An attorney has no authority arising from his employment in that capacity to compromise the claims of his client; such authority, whenever it exists at all, does so by reason of the client specially conferring on his attorney the power to effect the compromise in the given case. Story on Agency, § 99; Hall v. Hopkins, 14 Mo. 450; Taylor v. Labaume, 14 Mo. 572; Quarles v. Porter, 12 Mo. 76; Davidson v. Rozier, 23 Mo. 387; Walden v. Bolton, 55 Mo. 405; Spears v. Ledergerber, 56 Mo. 465; 1 Parsons on Cont., 113. An attorney authorized to compromise a suit is a special agent to perform a single act, and must be governed by instructions; and if he exceeds the special and hmited authority given him, he does not bind his principal. Story on Agency, §§ 99, 126; 1 Parsons on Cont., ch. 3; Walden v. Bolton, 55 Mo. 405. The fact that appellant was present in court does not show that he had any knowledge of what was passing between the attorneys with reference to the compromise. In the former trial of this cause, there was no decree or judgment of the court rendered upon the stipulations filed. The whole proceeding of the compromise was a surprise to plaintiff, and his presence in court cannot be made a trap to catch him in, and fasten upon him, by any means of construction, a knowledge of facts which from the evidence it is clear he never had. Evans v. Llewellin, 1 Cox 340; s. c., 2 Bro. Ch. 150.

Charles A. Winslow for respondents.

The judgment rendered in the former suit was a final judgment, and appears so entered on the record. Appellant's reply is a general denial of the answer, and contains nothing in avoidance of the judgment. To avoid it on equitable grounds, for any recognized cause, he should have set up the equitable matters relied on in his reply. The judgment settled all matters in dispute between the parties, and is very much unlike an ordinary judgment in ejectment.

Appellant's attorney had apparent authority to sign the compromise...