Scott v. Bevilacqua

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LORING
• Citation: 226 Mass. 554,116 N.E. 563
• Parties: SCOTT v. BEVILACQUA. SAME v. DRINKWATER.
• Decision Date: 23 May 1917

226 Mass. 554
116 N.E. 563

SCOTT
v.
BEVILACQUA.
SAME
v.
DRINKWATER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1917.

Exceptions and Appeal from Superior Court, Suffolk County.

Two suits by James Scott against Alexander J. Bevilacqua, alias Alexander J. Drinkwater, and against Alexander J. Drinkwater, alias Alexander J. Bevilacqua. On defendant's bill of exceptions to certain orders and on defendant's appeals therefrom. Appeals dismissed, and exceptions overruled.

Samuel [226 Mass. 555]L. Bailen and Frank Leveroni, both of Boston, for plaintiff.

Wm. A. Lackey, of Boston, for defendant.

LORING, J.

The exceptions now before us were taken at a hearing which resulted in striking from the files of the court an [226 Mass. 556]agreement for judgment and judgment satisfied. Both the above cases were against the same defendant. In the first case he was sued as Bevilacqua otherwise known as Drinkwater and in the second case he was sued as Drinkwater otherwise known as Bevilacqua.

The judge who heard the motions here in question found the following to be the facts: Both cases had been referred to an auditor under an agreement that his findings of fact were to be final. On April 1, 1916, the auditor sent copies of a draft report to both counsel and set April 8 as the day for hearing them before ‘settling’ his report. By his draft report the auditor found for the plaintiff in both actions in the first in the sum of $2,000 and in the second for $100.

Upon receiving a copy of the draft report the defendant's former counsel notified him (the defendant) of the findings there made. Upon receiving this information the defendant asked his counsel ‘If it wouldn't be a good idea to settle the cases if he could.’ His counsel told him that it would. Thereupon he took with him one Bursteen (who had been a witness for him at the hearings

[116 N.E. 564]

before the auditor) and went to Keegan a village in the town of Van Buren in the state of Maine where the plaintiff lived. The defendant and Bursteen arrived at Keegan on the afternoon of April 7th. On arriving there they went to the plaintiff's house and told him ‘they had settled with his [the plaintiff's] counsel, Mr. Bailen, and had been sent by Bailen to settle with him.’ This was false. Neither the defendant nor his counsel had seen Mr. Bailen nor had had any communication with him in the matter. At this time the plaintiff refused to settle the case with the defendant. On the next day, Saturday, April 8th (the day set by the auditor for the hearing to settle his report), Drinkwater and Bursteen persuaded the plaintiff to go to the town of Van Buren and there consult an attorney. This attorney after conferring with the plaintiff alone advised him ‘that nothing ought to be done’ in the matter until he (the plaintiff) had heard from Mr. Bailen, his Boston attorney. In the words of the judge:

‘They then went to another attorney, Mr. Keegan; and an agreement was finally reached for a settlement on payment of $350 in cash, a note for $50 payable in monthly installments of $5 and an agreement by Drinkwater [the defendant in both actions] to pay the [226 Mass. 557]charges of Mr. Bailen.’

The judge found that the plaintiff signed the agreement of settlement and understood what he was signing. At the same time he signed a release under seal, of all demands which he had against the defendant. This release had been prepared in Boston. He also signed a receipt for the $350 cash and the note for $50. In addition he signed an agreement for judgment and judgment satisfied in both actions. Both of these agreements had also been prepared in Boston. He also received from the defendant an agreement to pay Mr. Bailen's fees. This agreement had been prepared by the attorney (Keegan by name) who lived in Van Buren and was the second attorney consulted by the plaintiff in the state of Maine. Early Monday morning (April 10) the plaintiff in Maine received a letter from Mr. Bailen ‘announcing the decision of the auditor, finally determined on Saturday, April 8.’ The defendant's attorney filed the agreements for judgment and judgment satisfied on Tuesday, April 11. The plaintiff's attorney on Thursday, April 13, on finding that they were filed in court made and filed a motion to have these agreements stricken from the files. This was done. At the same time he filed a motion for judgments in favor of the plaintiff in accordance with the auditor's report. The plaintiff did not return the...