Pomeroy v. Prescott

• Decision Date: 25 February 1910
• Parties: POMEROY v. PRESCOTT.
• Court: Maine Supreme Court

76 A. 898

106 Me. 401

POMEROY

v. PRESCOTT.

Supreme Judicial Court of Maine.

Feb. 25, 1910.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Eugene E. Pomeroy against Frederick M. Prescott. Verdict for plaintiff, and he brings exceptions. Exceptions sustained, and judgment for plaintiff.

Assumpsit on an account annexed wherein the plaintiff sought to recover from the defendant the sum of $283 for services in decorating the auditorium at Portland, preparatory to holding an automobile show in February, 1906. Plea, the general issue, with the following brief statement: "That, as to the second, third, fourth, fifth, sixth, seventh, eighth, and ninth items of the account annexed in the plaintiff's writ the defendant says that any promise to pay said amounts was not in writing, or evidenced by memorandum in writing, and within the statute of frauds, being promise to pay debt of another, and, further, that said claims and charges were specifically waived by written waiver of? attorney of record."

The verdict was for the plaintiff for $138.19 only. The plaintiff excepted to certain rulings made during the trial, and it was stipulated that if the exceptions were sustained judgment should be for the plaintiff for the full amount of his claim, with interest from the date of the writ.

The case is stated in the opinion.

Argued before WHITEHOUSE, PEABODY, SPEAR, CORNISH, KING, and BIRD, JJ.

Oakes, Pulsifer & Ludden, for plaintiff.

Guy H. Sturgis, for defendant.

WHITEIIOUSE, J. This is an action of assumpsit on an account annexed, wherein the plaintiff seeks to recover from the defendant the sum of $283 for services in decorating the auditorium at Portland, preparatory to holding an automobile show in February, 1906.

It appears that the claim in suit comprised 13 items. The first 4 amounted to $120, and the remaining 9 aggregated $163. The defendant pleaded the general issue with a brief statement, in which it was alleged that any promise on the part of the defendant to pay the last 9 items in the account was a promise to pay the debt of another; that it was not evidenced by any memorandum in writing signed by the defendant; and that under the statute of frauds no recovery could be had as to those items. It was further alleged in the brief statement that all of the claims and charges contained in those 9 items were specifically waived in writing by the former attorney of record who brought the suit.

The instrument purporting to be a written waiver and release of the last 9 items was introduced in evidence subject to the plaintiff's objection, and is of the following tenor:

"Portland, Maine, January 11, 1908.

"I, Eugene E. Pomeroy, formerly of Lewiston, Maine, do hereby waive, relinquish and release all claims and rights whatsoever, which I now have, or may hereafter acquire, against Frederick M. Prescott, of Boston, Massachusetts, on account of any balance due me for decorating Auditorium in Portland, Maine, during the automobile show in February, 1906, from [the persons named in the last nine items of the account].

"Meaning and intending to waive all claims whatsoever against Frederick M. Prescott for on account of said balances alleged to be due me from the parties above mentioned, as above set forth, and waiving all rights whatsoever, which I now have, or may hereafter acquire, against said Frederick M. Prescott under and by virtue of the capias writ of myself vs. said Prescott, dated March 1, 1907, returnable the third Tuesday of April, 1907, before the Supreme Judicial Court for the county of Androscoggin, in the state of Maine, being any and all charges or items therein set forth relating to above balances, claiming under said writ and in said suit only recovery for the following items, to wit:

To decorating Auditorium in Portland,

Maine, 1906.........................$ 75

To balance due me from F. M. Prescott,

personal booth on main floor........... 9

To balance due me from F. M. Prescott,

personal booth on basement............ 20

To balance due me from P. M. Prescott,

personal booth on basement............ 16

To decorating Auditorium in Portland, Maine, 1900

$ 75

To balance due me from F. M. Prescott,

9

To balance due me from F. M. Prescott,

20

To balance due me from F. M. Prescott,

16

"Amounting altogether to the sum of $120.

"Eugene E. Pomeroy,

"By ————, His Attorney."

No evidence was introduced of any authority in the attorney to execute the waiver beyond his general authority as attorney of record in the suit, or that any consideration was received for the same, except as correctly stated by the presiding justice in his charge. But the facts stated by the presiding justice as the basis of his ruling on the question of waiver did appear.

The presiding justice instructed the jury in relation to said waiver, as follows:

"Now it seems that since this writ was brought, counsel (not the counsel who are trying the case, but counsel in Portland who represented the plaintiff and brought the suit) undertook to make an arrangement with counsel for the defendant in regard to certain of these items. It was stated by counsel, and perhaps in your presence (I think yon were present this forenoon), that in anticipation of this trial, in making various arrangements about taking testimony and depositions and one thing and another, preparatory to the trial, that, in order to accomplish some purpose, the attorney who was then counsel for the plaintiff undertook to waive any claim as to certain of the items. So far as the case is now concerned, it matters not whether he acted under misapprehension or not, or whether he was wise in doing it or not. He did it, and a question of law has arisen as to what the effect of it was—whether he had, as a lawyer, and as counsel in the case, authority to so act and to bind his client. And I have intimated to counsel, and I now instruct you, that at least for the purposes of this trial that the act of that attorney was within his authority under the circumstances as conceded to be true. He did have authority to waive certain items of the account, and to say that when the case came on to be tried, the plaintiff would rely only on certain other items which are the four items at the top of this specification, being the first four items in the account annexed. And when I speak of the account annexed I mean this later one. It seems that there has been an amended account, which has the items a little more in detail. So that the attorney undertook to waive the last nine items, but to retain the first four items. The last nine items relate to these various booths around on the floor, where men would not pay the full price, and where Mr. Pomeroy says that Mr. Prescott agreed to make it up to the full price.

"As I say, I think that under the circumstances of the case that the attorney, whether wise or unwise, was acting within his authority, that he had a right to do it—had the power to do it—and that his client is bound by his action, and that therefore the last nine items of this account annexed the plaintiff cannot now recover for, in any event. And if you find for the plaintiff, and the plaintiff's version is the true one, by a fair preponderance of the evidence, then you will return a verdict for the plaintiff for the amount of the first four items."

The presiding justice instructed the jury to make a separate finding in relation to the last nine items in the amended bill of items, and propounded to the jury the following question: "When this action was commenced, was anything due to the plaintiff on account of the last nine items, in the amended bill of items in the plaintiff's writ, namely, for decorating booths occupied by the parties named in the last nine items?"

And to this query, the jury answered in the affirmative, and, in addition, rendered a verdict for the plaintiff in the sum of $138.19.

The case comes to the law court on exceptions to the ruling admitting the waiver in evidence and to the instructions given by the presiding justice in the charge to the jury.

It is stipulated that, if the exceptions are sustained, judgment shall be ordered for the plaintiff for the full amount of his claim with interest from March 1, 1907, the date of the writ.

It is provided by section 59 of chapter 84, Rev. St., that "no action shall be maintained on a demand settled by a creditor, or his attorney intrusted to collect it, in full discharge thereof, by the receipt of money or other valuable consideration, however small."

It is obvious that this statute is not available in the defense of this action, first, because there was no settlement of the demand "in full discharge thereof," and, secondly, because it does not appear from any facts stated in the charge, or elsewhere in the exceptions, that there was any valuable consideration whatever for "waiving and releasing" the last nine items in the plaintiff's account.

Indeed, this...