Read v. Baker, Civ. A. No. 4580.
| Court | United States District Courts. 3th Circuit. United States District Court (Delaware) |
| Writing for the Court | Robert K. Payson of Potter, Anderson & Corroon, Wilmington, Del., for defendants |
| Citation | 438 F. Supp. 732 |
| Parties | Walter A. READ, Plaintiff, v. George P. BAKER et al., Defendants. |
| Decision Date | 12 September 1977 |
| Docket Number | Civ. A. No. 4580. |
438 F. Supp. 732
Walter A. READ, Plaintiff,
v.
George P. BAKER et al., Defendants.
Civ. A. No. 4580.
United States District Court, D. Delaware, Wilmington.
September 12, 1977.
Robert K. Payson of Potter, Anderson & Corroon, Wilmington, Del., for defendants.
LATCHUM, Chief Judge.
This civil action, seeking damages for alleged wrongful discharge, libel and slander, has been pending in this Court since February 8, 1973. The plaintiff has been represented during the course of this litigation by four different attorneys. After considering defendants' motion for summary judgment, the Court, on March 25, 1977, dismissed or granted judgment in favor of the defendants on plaintiff's claim for wrongful discharge, on his claim based on the publication of allegedly slanderous and libelous statements made during the course of a 1971 judicial proceeding in the United States District Court for the Eastern District of Pennsylvania and on his claims based on the publication of allegedly slanderous or libelous statements made prior to February 8, 1971. Read v. Baker, et al., 430 F.Supp. 472, 477-78 (D.Del.1977).
A pre-trial stipulation was approved at a pre-trial conference on April 4, 1977, and a jury trial was scheduled, on the issues outlined by the Court, 430 F.Supp. at 478, to commence on June 13, 1977. (Docket Items 43 & 44). Although the parties had submitted proposed jury instructions, counsel for the parties advised the Court on June 1, 1977, that they had agreed upon a compromise and settlement and that trial was unnecessary. Whereupon the jury trial was cancelled and counsel were advised to consummate the agreement of settlement promptly.
On August 22, 1977, plaintiff's present attorney filed his notice of appearance (Docket Item 51) and advised the Court that he was in no position to proceed to trial. Defendants' counsel advised the Court that the defendants intended to move in these proceedings for specific performance of the compromise and settlement agreement.
On August 25, 1977, defendants filed an equitable "counterclaim" alleging that although the case had been compromised and settled, the plaintiff had refused to consummate the settlement agreement and therefore the defendants seek specific performance of the agreement. (Docket Item 52). On September 2, the plaintiff answered the counterclaim, generally denying that a settlement had been reached and pleaded four affirmative defenses, viz.: (1) the counterclaim failed to state a cause of action against plaintiff, (2) the defendants failed to comply with Rule 15(a), F.R.Civ.P., in that they did not seek leave of Court to amend their original answer,1 (3) plaintiff's attorney had no authority to effect a settlement, and (4) defendants have an adequate remedy at law by an independent action for alleged breach of contract. (Docket Item 53).
Having heard arguments of counsel on the validity of the affirmative defenses, this is the Court's memorandum opinion ruling on those matters.
The equitable counterclaim here asserted alleges (1) that the defendants' agent made an offer on June 1, 1977, to plaintiff's then attorney of record to compromise and settle plaintiff's claims in this litigation for the sum of $1,250., (2) that on the same date plaintiff's then attorney with the express authority of the plaintiff accepted said offer
1. First Affirmative Defense.
Plaintiff's first affirmative defense, that the equitable counterclaim fails to state a claim upon which relief may be granted, is without merit. Accepting the truth of the allegations of the counterclaim, which the Court is bound to do at this stage of the proceedings, it is clear that the pleading alleges the essentials of a compromise, an agreement to terminate, by mutual concessions, a claim which is unliquidated. The pleading contains the offer, the acceptance and consideration; these allegations are sufficient under Rule 8(a), F.R.Civ.P. because they give a short, plain statement of the terms of the oral contract which contains the elements of a binding agreement. Furthermore, the pleading alleges that the compromise was entered into by plaintiff's then attorney of record who had express authority from the plaintiff to settle the case. Under Delaware law, an attorney of record in a pending action who agrees to a compromise of a case is presumed to have lawful authority to make such an agreement and the client bears the burden of rebutting that presumption. Aiken v. National Fire Safety Counsellors, 36 Del.Ch. 136, 127 A.2d 473, 475 (1956); ...
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US v. Dantzler Lumber & Export Co., Court No. 90-11-00600.
...Dredge & Dock Corp. v. City of Detroit, 800 F.2d 525 (6th Cir.1986); Wong v. Bailey, 752 F.2d 619 (11th Cir.1985); Read v. Baker, 438 F.Supp. 732 (D.Del.1977); Walden v. Sanger, 250 S.W.2d 312 (Tex.Civ.App. 1952), and 30 A.L.R.2d 953, § These cases do indeed stand for the proposition that t......
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New Castle County v. US Fire Ins. Co., Civ. A. No. 85-436-JLL.
...71, 76-77 (6th Cir.1985) (citing cases); Rosso v. Foodsales, Inc., 500 F.Supp. 274, 276 (E.D. Pa.1980) (citing cases); Read v. Baker, 438 F.Supp. 732, 735 (D.Del.1977); see also Pugh v. Super Fresh Food Markets, Inc., 640 F.Supp. 1306, 1307 (E.D.Pa.1986); Morris v. Gaspero, 522 F.Supp. 121,......
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Wilcher v. City of Wilmington, SODAT-D
...to enforce a settlement agreement when it determines that one of the parties has failed to perform its obligations. See Read v. Baker, 438 F.Supp. 732, 735 (D.Del.1977), citing Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir.1966). The power to grant or deny......
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Corbesco, Inc. v. Local No. 542, Intern. Union, Civ. A. No. 83-180-JLL.
...into by litigants in a case pending before it. Hobbs v. American Investors Management, Inc., 576 F.2d 29 (3d Cir.1978); Read v. Baker, 438 F.Supp. 732 (D.Del.1977). Delaware law, which is controlling in this case, is well established concerning the circumstances under which a settlement agr......
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US v. Dantzler Lumber & Export Co., Court No. 90-11-00600.
...Dredge & Dock Corp. v. City of Detroit, 800 F.2d 525 (6th Cir.1986); Wong v. Bailey, 752 F.2d 619 (11th Cir.1985); Read v. Baker, 438 F.Supp. 732 (D.Del.1977); Walden v. Sanger, 250 S.W.2d 312 (Tex.Civ.App. 1952), and 30 A.L.R.2d 953, § These cases do indeed stand for the proposition that t......
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New Castle County v. US Fire Ins. Co., Civ. A. No. 85-436-JLL.
...71, 76-77 (6th Cir.1985) (citing cases); Rosso v. Foodsales, Inc., 500 F.Supp. 274, 276 (E.D. Pa.1980) (citing cases); Read v. Baker, 438 F.Supp. 732, 735 (D.Del.1977); see also Pugh v. Super Fresh Food Markets, Inc., 640 F.Supp. 1306, 1307 (E.D.Pa.1986); Morris v. Gaspero, 522 F.Supp. 121,......
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Wilcher v. City of Wilmington, SODAT-D
...to enforce a settlement agreement when it determines that one of the parties has failed to perform its obligations. See Read v. Baker, 438 F.Supp. 732, 735 (D.Del.1977), citing Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir.1966). The power to grant or deny......
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Corbesco, Inc. v. Local No. 542, Intern. Union, Civ. A. No. 83-180-JLL.
...into by litigants in a case pending before it. Hobbs v. American Investors Management, Inc., 576 F.2d 29 (3d Cir.1978); Read v. Baker, 438 F.Supp. 732 (D.Del.1977). Delaware law, which is controlling in this case, is well established concerning the circumstances under which a settlement agr......