Johnson v. Von Scholley
| Decision Date | 04 August 1914 |
| Citation | 218 Mass. 454,106 N.E. 17 |
| Parties | JOHNSON v. VON SCHOLLEY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm Burns, of Boston, for plaintiff.
W. C Cogswell, of Boston, for defendants.
The defendants and the railway company upon the record were concurrent tort-feasors, and an unqualified release of the company under seal would have discharged them. Feneff v Boston & Maine R. R., 196 Mass. 575, 82 N.E. 705; Boston Supply Co. v. Rubin, 214 Mass. 217, 101 N.E 133. But the covenant not to sue put in evidence by the defendants did not operate as a discharge of the plaintiff's cause of action; it only barred the remedy against the company for reasons stated in Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267. The amended answer, however, pleaded in general terms an accord and satisfaction with the company whereby they had been relieved from liability. It is settled that, not having been parties or privies to the instrument, the defendants could show by parol evidence that it did not express the actual compromise. Kellogg v. Tompson, 142 Mass. 76, 6 N.E. 860. See Snow v. Alley, 151 Mass. 14, 23 N.E. 576.
The correspondence between the various attorneys representing the plaintiff and the company, as well as his personal letter to it, were admissible as evidence of a demand for damages, and as preliminary to the final agreement in so far as the negotiations were authorized by him. Pickert v. Hair, 146 Mass. 1, 15 N.E. 79; Loomis v. N. Y., N.H. & H. R. R., 159 Mass. 39, 34 N.E. 82; James v. Boston Elev. Ry., 201 Mass. 263, 87 N.E. 474. It is to be noted that previous to September 21, 1912, the correspondence relates only to a claim against the company, or notice to it by the plaintiff of the discharge of former counsel and retaining of new counsel. No offer to settle without suit appears. The authority of an attorney under a general retainer to compromise a claim of his client's, while referred to in Brewer v. Casey, 196 Mass. 384, 386, 82 N.E. 45, where the earlier cases are cited, is not presented by the record. See, also, Gilman v. Cary, 198 Mass. 318, 84 N.E. 312.
The plaintiff's instructions in writing to counsel then acting for him, offered in evidence by the defendants, but improperly excluded, expressly authorized a settlement upon condition 'that my rights be reserved against the Burkhardt Brewing Company,' the name under which the defendants are described in the writ, although the legal form in which the settlement should be expressed is not stated. It was left to his counsel. The conversations between the agent of the company to whom the instructions had been transmitted, and the plaintiff's attorney which took place before the covenant not to sue was executed, also were...
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