Henderson v. Great Atlantic & Pac. Tea Co.
| Citation | 132 N.W.2d 75,374 Mich. 142 |
| Decision Date | 04 January 1965 |
| Docket Number | No. 64,64 |
| Parties | Helen HENDERSON, Plaintiff and Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., a foreign corporation, Defendant and Appellee. |
| Court | Supreme Court of Michigan |
Gerald M. Franklin, Detroit, for plaintiff and appellant.
Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Detroit, for defendant and appellee.
Before the Entire Bench.
The main question presented in this appeal is:
'Where a check is given for settlement of a claim in good faith by a defendant to an attorney at law who purports to represent a claimant, and that attorney wrongfully forges the client's name to said check, and keeps the entire proceeds thereof, is a later suit by the client against the defendant barred because of the wrongful acts of the attorney?'
Plaintiff herein on March 25, 1961, purchased from defendant a pork roast and by reason of consumption thereof became violently ill with trichinosis. Plaintiff retained Allen Chalfin, and entered into a contingent agreement with him.
There is conflict in the testimony as to whether Chalfin continued to represent plaintiff or whether Dudley Davies, another attorney, in fact assumed control of plaintiff's case. Chalfin testified before the trial court that he was responsible personally to plaintiff for the conduct of her case and that he never turned the case over to Davies; that he merely told Davies 'to work the file up.' Davies, in contrast, testified by sworn statement that he alone represented plaintiff and that he alone was responsible for the conduct of her case.
On May 5, 1961, attorney Davies on the letterhead of attorney Chalfin wrote a letter to defendant stating that plaintiff had become violently ill after eating pork roast purchased at defendant's store and, 'that this office has been retained' and 'this office retains an attorneys lien re: services rendered or to be rendered in this cause on any and all judgments, settlements, and/or proceeds.' The letter concluded, 'Very truly yours, Chalfin & Davies--By: Dudley I. Davies.'
Subsequently Davies negotiated a purported settlement with defendant's insurance company and on May 11, 1962, Davies received a check in the amount of $800 from the Aetna Casualty & Surety Company, payable to the order of Helen Henderson and Dudley Davies. Davies then forged plaintiff's name on the check, endorsed his own name, negotiated it, and converted the proceeds to his own use.
Chalfin testified that he was unaware of the settlement negotiated by Davies until the insurance adjuster, one Ryan, called his office concerning the releases which Davies had failed to forward to Ryan. After an investigation, Chalfin discovered Davies' machinations and reported them to plaintiff, whereupon she retained Gerald Franklin to represent her.
Thereafter, in October, 1962, plaintiff filed a declaration against defendant seeking damages. Defendant made a motion to dismiss on the ground that an accord and satisfaction and/or estoppel existed as to any claims plaintiff had against defendant by reason of the settlement entered into between defendant and Davies.
After the taking of testimony and due consideration, the court granted defendant's motion to dismiss and in its opinion stated:
(Citing Rossman v. Hutchinson, 289 Mich. 577, 286 N.W. 835, and Samuels v. Detroit Trust Co., 223 Mich. 661, 194 N.W. 517.)
Plaintiff now appeals from the order granting the motion to dismiss, contending that Davies had no authority to settle plaintiff's claim without her knowledge and consent; that she has in no way ratified or accepted such purported settlement and, consequently, Davies' acceptance of the check and negotiation thereof should in no way be considered a bar to the maintenance of plaintiff's cause of action against defendant.
The trial court's reliance on Rossman v. Hutchinson and Samuels v. Detroit Trust Co., supra, in granting defendant's motion to dismiss was misplaced.
In Rossman, a Mrs. Kerschner, in order to assist her niece and nephew-in-law, Mr. and Mrs. Hutchinson, lent securities to the Hutchinsons so that they could hypothecate them to a bank as additional security for loans made to the Hutchinsons thereby enabling the bank to escape criticism by national bank examiners for carrying the Hutchinson loans with insufficient collateral. This Court ruled that (289 Mich. pp. 592, 593, 286 N.W. p. 841)
In Samuels, Samuels and wife conveyed realty by warranty deed, without any exceptions or reservations to one...
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...N.W.2d 471 (1954). However, an attorney must have specific authority from the client to settle a case. Henderson v. Great Atlantic & Pacific Tea Co., 374 Mich. 142, 132 N.W.2d 75 (1965). The Henderson Court noted that: the almost unanimous rule, laid down by the courts of the United States,......
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