Precious v. O'Rourke
| Decision Date | 03 February 1930 |
| Citation | 170 N.E. 110,270 Mass. 305 |
| Parties | PRECIOUS v. O'ROURKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County; Greenhalge, Judge.
Petition by Arthur L. Precious for writ of review of a judgment, opposed by Richard O'Rourke. On report after issuance of the writ. Order for issuance of writ affirmed.
1. Attorney and client k88-Attorney under general employment has power to do things necessary or incidental to prosecution of case which affect remedy.
An attorney acting under his general employment has broad powers to do the things necessary or incidental to the prosecution and management of the case which affect the remedy and not the cause of action.
2. Attorney and client k101(1)-General powers of attorney do not extend to settlement of plaintiff's cause by entering into compromise agreement for judgment, and judgment satisfied.
It is not within the general powers of an attorney, employed to represent plaintiff in litigation, to settle plaintiff's cause of action by entering into a compromise agreement for judgment, and judgment satisfied filed in the case.
3. Attorney and client k101(1)-Opposing party must ascertain at his peril whether attorney has authority to bind his client by compromise settlement.
When an attorney undertakes to bind his client by an agreement to compromise his client's substantial rights, opposing party must ascertain at his peril whether the attorney has authority to make the settlement.
4. Attorney and client k101(1)-Where plaintiff's attorney, insuit for injuries, without authority entered into agreement for judgment, and judgment satisfied, without paying proceeds thereof to client, client was properly granted writ of review of judgment without restoringto defendant amount paid in settlement.
Where attorney for minor bringing action for minor's injuries, who was not held out as having special powers beyond those generally given attorney, entered into compromise settlement, and delivered to defendant's attorney agreement for judgment, and further agreement for judgment satisfied, signed by attorney for plaintiff, and approved by court, together with release purporting to be signed by minor's guardian, but where, as a matter of fact, the agreement was unauthorized, and the money received never went to the client, and client was ignorant of agreement, court properly granted client's petition for writ of review of the unauthorized judgment, without requiring him to pay defendant the amount of the settlement.
5. Attorney and client k101(1)-Party given full opportunity to be heard before court cannot thereafter deny counsel's authority to make settlement.
If at a hearing before the court a party has been given full opportunity to be heard, he cannot thereafter contend either that his counsel was without authority or that the settlement was not binding on him.
6. Attorney and client k85-Judgment entered on attorney's unauthorized compromise agreement in settlement of client's claim may be set aside.
Judgment entered on an unauthorized compromise agreement made by an attorney in settlement of his client's claim may be set aside on ground of lack of authority in the attorney to make the compromise.
7. Review k5-Granting petition for writ of review is largely discretionary with trial judge.
Granting of petition for writ of review is matter resting largely in the discretion of the trial judge.
F. W. Crocker and T. W. Monroe, of Boston, for plaintiff.
J. F. A. Daly and J. R. Fuller, of Boston, for defendant.
This is a petition for writ of review of a judgment for the plaintiff entered in a case begun in the superior court by writ dated May 19, 1928, in which the petitioner, by his guardian and next friend, was the plaintiff. At the hearing on the petition it appeared that Arthur L. Precious, a minor, was injured in an automobile accident on November 4, 1927, in which a motor vehicle driven by the defendant was involved, and brought an action to recover for the injuries in which an attorney appeared of record for him. During the pendency of the action his attorney conferred with the attorney of record for the defendant in regard to a settlement, and the latter in behalf of the defendant agreed to pay the plaintiff $1,500 upon condition that he through his attorney would furnish the defendant with an agreement for judgment for that sum and agreement for judgment satisfied approved by the court, and a release signed by Arthur Precious, as guardian and next friend of the plaintiff of all claims against the defendant. The attorney for the plaintiff delivered to the attorney for the defendant an agreement for judgment in the sum offered, and a further agreement for judgment satisfied, both of which were signed by the attorney for the plaintiff and approved by the court. The attorney for the plaintiff also delivered to the attorney for the defendant a release in full of all demands, purporting to have been signed by Arthur Precious, guardian and next friend of the plaintiff. There appears of record in the action an agreement for judgment in the sum of $1,500 without costs and a further agreement for judgment satisfied approved by the court, signed by both attorneys and filed June 5, 1928. No execution has issued on the judgment. The judge found that the attorney was employed by the guardian to represent the plaintiff and bring an action in his behalf against the defendant for the injuries, and at the time of employment had no talk with the attorney as to what he should do or not do in handling the case. After about eight months the attorney for the plaintiff stated to the guardian that he had an offer of $500 in the case but that he did not take it. From that time until January, 1929, nothing was said between the guardian and the attorney about the case. The judge found on all the evidence that there was no specific authority given the attorney to make a settlement with the defendant; that when the settlement was made both the plaintiff and guardian were ignorant of the agreement for settlement; that neither of them signed the release and neither of them had any knowledge of...
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Horney v. Westfield Gage Co.
...and costs. That is good lawyering on Draper's part. Even the best lawyering, however, sometimes goes awry. See Precious v. O'Rourke, 270 Mass. 305, 170 N.E. 110, 111 (1930) ("When the attorney undertakes to bind his client to an agreement to compromise his client's substantial rights, the o......
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...found that the release and agreement for judgment were not executed by the plaintiff or with her authority. See Precious v. O'Rourke, 270 Mass. 305, 307-308, 170 N.E. 110 (1930). Thus, the judge could conclude that vacating the judgment was "appropriate to accomplish justice." Klapprott v. ......
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