Phillips v. Pullen

• Decision Date: 23 May 1888
• Citation: 14 A. 222,50 N.J.L. 439
• Court: New Jersey Supreme Court
• Parties: PHILLIPS v. PULLEN.

14 A. 222

50 N.J.L. 439

PHILLIPS

v. PULLEN.

Court of Errors and Appeals of New Jersey.

May 23, 1888.

(Syllabus by the Court.)

Error to circuit court, Mercer county; BEASLEY, Judge.

W. Y. Johnson and The Attorney General, for plaintiff in error. Mr. Beasley, Mr. Vanderbilt, and Mr. Holt, for defendant in error.

MAGIE, J The assignments of error are directed at the circuit court in refusing to nonsuit, and in directing a verdict for the plaintiff below, notwithstanding the evidence on the part of the defendant below. The questions thus raised may be considered together, for it is obvious that the direction to find a verdict cannot be justified unless it appears, not only that the rejected evidence ought not to have been submitted to the jury, but also that the evidence on the part of the plaintiff below was both proper to be left to the jury, and so conclusive that it required a verdict in his favor. The action was brought by Pullen against Phillips in contract. The declaration (which was in form a declaration in assumpsit) averred the existence of a former suit brought in the supreme court by Pullen against Phillips, and its settlement by a written agreement. The pleadings in that suit and the agreement of settlement were annexed to and made part of the declaration. It thereby appeared that the former action was in case. The declaration therein contained a count for criminal conversation with Pullen's wife, a count for enticing her from Pullen, and a count for harboring her. The plea was the general issue. The agreement of settlement was in these words: "NEW JERSEY SUPREME COURT. MERCER COUNTY CIRCUIT. Ralph L. Pullen v. George E. Phillips. In Case. The said cause having been settled by the parties upon the terms that the said defendant is to pay the plaintiff, or his attorney, the sum of seven thousand and five hundred dollars, in full satisfaction of all damages under said cause. It is therefore agreed by the respective counsel of the said parties that the payment of the said sum shall be made within two weeks from the date hereof; and upon such payment the said plaintiff shall execute a release to the defendant in full for the damages claimed in said action. Dated Trenton, N. J., January 20, 1886. G. D. W. VROOM, Atty. of Deft. GEO. O. VANDERBILT, Atty. of Plaintiff." The declaration in the action before us was founded on the assumpsit contained in that agreement. The cause went to trial on a plea of non assumpsit.

Since the undertaking was not executed by Phillips, but by his attorney, the objection which challenges the sufficiency of the proof of the attorney's authority to thus bind Phillips ought to be first considered. It is conceded by counsel that such authority cannot be inferred from his employment as attorney, but must have been expressly conferred. The proof of Mr. Vroom's authority came from himself. He was called for Pullen, and permitted to testify as to transactions with his client, under a waiver of the privilege of an attorney, (if such privilege could be claimed,) made by Phillips' counsel. It thereby appeared that, under a general authority from Phillips, he had commenced negotiations for a settlement of the suit for crim. con., which were continued on the first day of the term at which it was noticed for trial. They terminated that day with a refusal, by those representing Pullen, to settle for any sum less than $7,500. This refusal was communicated to Phillips, who, in turn, refused to give so much. The next morning, the cause being then liable to be called for trial soon, Phillips told Vroom to settle on the best terms he could. Vroom saw Vanderbilt, who was acting for Pullen, and having ascertained that no better terms could be obtained, agreed to settle on the terms before proposed. They both announced to the court that the case was settled, and executed the agreement in question. Phillips was not examined as a witness, and the testimony of Vroom, as to the express direction to settle, was on contradicted. The contention, however, is that there was evidence in the cross-examination of Vroom, and the examination of Edward T. Green, tending to show that the authority conferred by Phillips was conditioned upon a settlement of all matters whereby his alleged relations with Mrs. Pullen might become the subject of judicial investigation. But I am unable to find any evidence which would have justified the jury in such a finding. Green intervened in the negotiations as representative of Phillips' brother, but retired before the final arrangement. Vroom declared that he notified Pullen's representatives that his client asserted his innocence, and only consented to negotiate from a desire to avoid scandal. But there was no treaty for an agreement that Pullen would not file a bill for divorce on the ground of adultery, or would not testify upon a criminal complaint, and obviously no one of those concerned in the negotiations would have suggested or countenanced such an...