Smith v. Abbott

• Decision Date: 22 May 1915
• Citation: 109 N.E. 190,221 Mass. 326
• Parties: SMITH v. ABBOTT (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 326

109 N.E. 190

SMITH v. ABBOTT (two cases).

Supreme Judicial Court of Massachusetts, Suffolk

May 22, 1915

Report from Superior Court, Suffolk County; William B. Stevens Judge.

Two actions by Thomas P. Smith, one against Ellen M. Abbott and the other against Gordon Abbott, executor. Reported from the superior court after directed verdicts for defendants. Judgment for defendant in each action.

COUNSEL

Thos W. Proctor and Arthur P. Teele, both of Boston, for plaintiff.

Tyler Corneau & Eames and Michael J. Dwyer, all of Boston, for defendants.

OPINION

BRALEY J.

The plaintiff's cause of action rests upon the parol agreement alleged to have been made by the plaintiff, the lessee, with Charles H. Tyler, Esq., acting as counsel for the lessors when the lease was determined for nonpayment of rent and the premises were surrendered. By the re-entry which followed the plaintiff's leases to subtenants would at once terminate, and even if they attorned to the owners he would become liable in damages for breach of the covenant for quiet enjoyment. Casassa v. Smith, 206 Mass. 69, 91 N.E. 891.

It was to protect himself from this liability that in consideration of the surrender, as he testified, the agreement of indemnity was entered into, and for the purposes of decision his testimony may be taken as true, as the jury could have believed him notwithstanding the evidence in contradiction introduced by the defendants.

But if, without deciding, it is assumed that what was said during the negotiations could be found to be an unqualified promise to indemnify and save the plaintiff harmless from liability to the sublessees, and the judgment recovered by one of them in Casassa v. Smith, 206 Mass. 69, 91 N.E. 891 after the lessors had been properly vouched in to defend, entitled the plaintiff to sue for damages, they never became bound unless Tyler was authorized to make the contract in their behalf. The lessors and owners in making the lease and in the collection of the rent and management of the premises acted through Gordon Abbott, their duly appointed attorney. And from his evidence the jury could have found that the respective powers of attorney from the defendant Abbott and Elizabeth S. Bangs, since deceased testate and of whose will he is executor, which were given after the date of the lease, 'were practically duplications of the earlier powers' of attorney, copies of which are part of the record. It would follow from this finding and an examination of the copies that the power of attorney under seal, given by him in their joint names to Charles E. Cotting, while in accordance Bank v. McGilvray,

4 Gray, 518, 521, 64 Am.Dec. 92; Dorchester & Wilton Bank v. New England Bank, 1 Cush. 177.

But having been given full authority by each principal to manage and convey the property, and if necessary to terminate the lease for breach of condition, the jury also could find from his evidence that upon being informed of the plaintiff's failure to pay the rent, which had fallen into arrears, he directed Cotting to employ counsel, 'try to collect the back rent and failing the success in that the terminate the lease.'

It is undisputed that Cotting accordingly retained Tyler, by whom an action of ejectment was brought in which judgment, with the plaintiff's consent, was not obtained until after the premises had been surrendered, under the agreement for termination, indorsed on the lease and executed by the plaintiff and the lessors through their attorney Abbott.

While the jury could have found from the plaintiff's evidence that Tyler informed Cotting of the negotiations and proposed agreement, yet it is plain that Cotting could not empower Tyler to bind the lessors. Nor could counsel under his retainer make an executory contract of indemnity in the nature of a compromise of their demands which would be binding on his clients. Lewis v. Gammage, 1 Pick. 347; Shores v. Caswell, 13 Metc. 413; Riley v. Boston Elev. Ry., 195 Mass. 318, 322, 81 N.E. 197; Pomeroy v. Prescott, 106 Me. 401, 76 A. 898, 138 Am.St.Rep. 347, 21 Ann.Cas. 574. See note page 577 for a full collection of cases.

The lessors' right to possession and the termination of the lease did not depend upon the making of the agreement, but upon the proceedings in ejectment to which the plaintiff at the time of the agreement admitted that he had no defense.

It was not Ford v. Williams,

13 N.Y. 577, 586, 67 Am.Dec. 83; Swartz v. D. S. Morgan & Co., 163 Pa. 195, 29 A. 974, 975, 43 Am.St.Rep. 786; Clark v. Randall, 9 Wis. 135, 76 Am.Dec. 252. Compare White v. Davidson, 8 Md. 169, 63 Am.Dec. 699.

But as an unauthorized agreement or compromise may be ratified by the client, the...