Pickert v. Hair

• Decision Date: 07 January 1888
• Citation: 15 N.E. 79,146 Mass. 1
• Parties: PICKERT v. HAIR. PHILLIPS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 1

15 N.E. 79

PICKERT

v.HAIR.

PHILLIPS

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

January 7, 1888.

Exceptions from superior court, Worcester county; ALDRICH, Judge.

Two actions of tort by James A. Pickert and Thomas Phillips against the defendant, a deputy-sheriff, to recover the value of certain goods attached by him as the property of Rozel F. Pickert and Hattie E. Pickert, his wife. At the trial in the superior court it appeared that in 1883 a store was opened in Worcester, for the sale of tea, coffee, etc., the business being conducted in the name of the “Importers' Tea Company;” that the manager of the store was the plaintiff Phillips, who had under him several clerks, and that there were several stores being run under the same name at the same time in other cities about the country; that Rozel F. Pickert and his wife were indebted to certain New York merchants, who sued their claims and attached the stock, etc., of the Importers' Tea Company in Worcester, claiming that the owners were said Pickert and his wife. The plaintiffs, however, claimed the property as theirs. There was evidence tending to show that Rozel F. Pickert had organized the general business as agent of his mother, in 1879, and managed the business until 1883, when his mother sold the business to his brother, James A. Pickert, one of the present plaintiffs. Evidence for the defendant tended to show that the sale to James A. Pickert was a pretended transfer, and that R.F. Pickert and his wife were the real owners of the property. The defendant called one Bacon, of the firm of lawyers who made the writs on which the attachments were made, and offered his testimony to show that on September 6, 1883, the evening of the day on which the attachments were made, one Thayer, who was counsel for these plaintiffs, came to his (Bacon's) office and said to him that R.F. Pickert represented to him that a certain party in New York, entirely other than James A. Pickert, and not now claimed to be the owner of the property at all, was the owner of the attached property; that he had come to state the fact because Pickert wanted to have him (Bacon) write to his clients in New York this fact, and if they would go to see the owner in New York they would be satisfied, and relinquish the attachment, which communication Bacon at once made by letter. The name of the alleged owner in New York was given Bacon, but was not mentioned in making offer by counsel for defendant. To the admission of this testimony the plaintiff objected, and the court excluded the evidence. The verdict was for the plaintiffs, and the defendant alleged exceptions.

John R. Thayer, for plaintiff.

There is no claim made, and no evidence introduced, to show that R.F. Pickert had any authority to act as agent in any capacity for Thomas Phillips, to employ counsel for him, or make any statement to bind him. Does the evidencesufficiently show that Mr. Thayer was counsel for any one, and, if so, whom? If counsel for any one, it was for R.C. Pickert, individually, and not for J.A. Pickert. If R.F. Pickert undertook to engage Mr. Thayer as counsel for J.A. Pickert, he exceeded his authority as agent. J.A. Pickert could not be bound by the declaration of R.F. Pickert as to the ownership of the property engaged in the Importers' Tea Company business. It was beyond the scope of his authority. R.F. Pickert could not authorize Mr. Thayer to make any statement, in absence of J.A. Pickert, about the fact of ownership of the property, which would be binding upon him. Even if Mr. Thayer was at the time counsel for James A. Pickert, he could not bind Pickert by any statement made in his absence relative to the fact of ownership of the property. Whether Mr. Thayer was acting as counsel for J.A. Pickert at this time or not, was a fact to be established by evidence before his acts or statements could be admitted or binding upon J.A. Pickert. It was a collateral matter upon the trial of the issue, and it was within the judgment and discretion of the court to determine whether that fact had been established, before admitting any statement of the counsel to go to the jury to affect J.A. Pickert. There is no appeal from a decision based upon the discretion of the court. Mr. Thayer, even if counsel for J.A. Pickert, could not bind his client by any statement or conversation in his absence, except in relation to the progress and trial of suits. 1 Greenl.Ev. § 186. “The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause. But admissions which are mere matters of conversation with an attorney, though they relate to the facts in the controversy, cannot be received in evidence against his client.” In Saunders v. McCarthy, 8 Allen, 42, the question was how much was due on a mortgage note. The defendant offered to show that the plaintiff's counsel, while conferring with the defendant for the purpose of settling the suit, told how much of the property covered by the mortgage had been sold, and to whom. In this case it was held that this evidence was not admissible. “Oral admissions made by an attorney out of court in a conversation had for the purpose of settling a suit, though relating to facts in controversy in the suit, are not admissible as evidence against his client.” Murray v. Chase, 134 Mass. 92;Treadway v. Railroad Co., 40 Iowa, 526; Parkins v. Hawkshaw, 2 Starkie, 239; Young...