Savage v. Blanchard
| Decision Date | 04 January 1889 |
| Citation | 19 N.E. 396,148 Mass. 348 |
| Parties | SAVAGE v. BLANCHARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D.G. Haskins, for plaintiff.
F.S Hesseltine, for defendant.
This is an action against an alleged indorser for costs recovered by the present plaintiff in three actions, in which the now plaintiff was defendant. The present defendant was counsel for the plaintiffs in those actions, and his name was on the writs. It was proved by parol in the present case, subject to the question of the admissibility of the evidence, that in the former actions a motion was made for an indorser, and that it was agreed in open court between the counsel representing the present plaintiff and the present defendant that, if the present defendant would allow an indorser to be ordered, he should be relieved when the order was passed. The docket entries are as follows: "23d of October, 1885 indorser ordered by the 27th, or nonsuit; 28th nonsuited."
The court was asked to rule that the agreement was invalid because not in writing, under Pub.St. c. 167, § 63. It is a sufficient answer to this proposition that the statute plainly is not intended to apply to an agreement like the present, made in open court, and acted on by the court. Rulings were also asked that the counsel for the present plaintiff had no authority to make the agreement, especially as he was not the attorney of record. We see no reason to doubt the authority of the counsel representing the plaintiff in court, with regard to this very matter, to make such an agreement. Moulton v. Bowker, 115 Mass. 36; Wieland v. White, 109 Mass. 392. But, however this may be, the present plaintiff comes into court relying on a judgment obtained in consequence of the order of the court, which was procured by the agreement in question, and he cannot repudiate the agreement while he takes the benefit of its consequences.
The main question is raised by the fourth request for instructions,--that the agreement would not release the defendant unless he was actually released of record, and his name stricken from the writs. The objection to this evidence of the agreement raises the same question.
The defendant's indorsement of the writs established conclusively that at that time he assumed the statutory liability. Gilbert v. Bank, 5 Mass. 97; McGee v. Barber, 14 Pick. 212, 216; Wheeler v. Lynde, 1 Allen, 402; Pub.St. c. 161, § 24. The judgment established conclusively the amount of the costs against whoever was indorser when it was rendered. Sherburne v. Shepard, 142 Mass. 141, 7 N.E. 719. But the judgment was not a judgment against the indorser. It did not establish that any particular person was then liable as indorser. The liability on the indorsement was not merged in the judgment. Therefore it was open to the indorser to prove any legal discharge of his liability, whether occurring before or after the judgment. The case is not within the principles of the decisions that on scire facias against a party to a judgment he cannot set up facts which might have been used in defense to the first suit. Richardson v. Wolcott, 10 Allen, 439, 440; Stephens v. Howe, 127 Mass. 164.
If, as results from the finding, the defendant's assent in open court was to operate by way of accord and satisfaction on the passing of the order, the satisfaction was intrinsically sufficient. See Evans v. Powis, 1 Exch. 601, 607; Hunt v. Brown, 146 Mass. 253, 254, 15 N.E. 587. The question of the defendant's privity to the consideration is not open, and we must take it, if necessary, that his personal act was the consideration. The effectual assent to the order, of course, was his client's, not his own; but, if the question were open, it might perhaps be that his client's assent would inure to his benefit, if for no other reason, on account of the unity of person between attorney and client, (McAvoy v. Wright, 137 Mass. 207, 209, and cases cited,) as has been held in the case of a married woman and her trustee, (Butler v. Ives, 139 Mass. 202.)
In former days, possibly, a technical difficulty might have been found in the rule that, although accord and satisfaction is a defense to a liability for damages, even on a specialty, a discharge of an obligation under seal, or of record, to pay a definite sum of money, must be of as high nature as the obligation. Blake's Case, 6 Coke, 43b, 44a; Peploe v Galliers, 4 Moore, 163, 165; Spence v. Healey, 8 Exch. 668; Riley v. Riley, 20 NJ.Law, 114; Mitchell v. Hawley, 4 Denio, 414. But this rule has been much broken in upon by statute, and by decisions upon equitable grounds in modern times. Bond v. Cutler, 10 Mass. 419, 421, Farley v. Thompson, 15 Mass. 18, 25; Sewall v. Sparrow, 16 Mass. 24, 27, and cases cited in Quincy v. Carpenter, 135 Mass. 102, 104; Ballou v. Billings, 136 Mass. 307, 309; Hastings v. Lovejoy, 140 Mass. 261, 265, 2 N.E. 776; Herzog v. Sawyer, 61 Md. 344; Weston v. Clark, 37 Mo. 568, 572; Hurlbut v. Phelps, 30 Conn. 42. We have no doubt that an indorser of a writ may prove payment or accord and satisfaction by parol evidence, and...
To continue reading
Request your trial