Pickert v. Hair

Decision Date07 January 1888
Citation15 N.E. 79,146 Mass. 1
PartiesPICKERT v. HAIR. PHILLIPS PHILLIPS v. SAME.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

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 evidence sufficiently 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 v. Wright, 1 Camp. 140; Petch v. Lyon, 9 Q.B. 147; Wagstaff v. Wilson, 4 Barn. & Adol. 339.

W.S.B. Hopkins, for defendant.

The admissibility of the evidence rejected depends on the question whether there was any evidence that Mr. Thayer was the attorney of the plaintiffs when he called on Mr. Bacon, the attorney for the defendant, who was then the attaching officer. It seems established that such authority is made out where the attorney afterwards becomes attorney of record, and where there is some other evidence to connect his subsequent appearance with his being the chosen attorney of the party at the time he made the admissions prior to the suit. The same cases are authority for the admissibility of admissions by attorneys made prior to suit. Marshall v. Cliff, 4 Camp. 133; Wagstaff v. Wilson, 4 Barn. & Adol. 339; Hefferman v. Burt, 7 Iowa, 320. The communication regarding the title of the property was competent in James F. Pickert's case, because it was the declaration of his general manager, on his theory of the case, and of the owner on ours. R.F. Pickert had been a witness in both cases, and had sworn to material facts which this former declaration of his, made by Thayer, tended to contradict. As to the admissibility of the evidence, so far as it is the evidence of an attorney, see Gainsford v. Grammar, 2 Camp. 9.

OPINION

FIELD J.

It is contended that the evidence offered of what Mr. Thayer said to Mr. Bacon was competent for two purposes: First, to contradict Mr. R.F. Pickert, who had testified as a witness for the plaintiffs; and, second, as an admission made by Mr. Thayer, as attorney for the plaintiffs in their actions, and therefore equivalent to an admission by the plaintiffs themselves. As evidence to contradict the witness Pickert, it was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT