Bonney v. Morrill

Barrows, J.

At the November term, 1864, in this county, the plaintiff had judgment against the defendant for a strip of land, upon a writ of entry dated September 4, 1860, to which defendant had pleaded the general issue.

That judgment was rendered in pursuance of a written agreement, filed in the case, and offered in evidence here, providing for a disposition of the real action, and of a suit upon an injunction bond brought by the defendant against the plaintiff. By the terms of this agreement judgment was to be rendered in favor of this plaintiff in both suits, but the executions for costs were to be stayed until the next term of court. This action is brought to recover the mesne profits of the same land during the pendency of the aforesaid writ of entry. The defendant offered parol evidence to prove that the claim for mesne profits was embraced in the settlement of the above-mentioned suits. The presiding judge admitted it subject to the plaintiff’s objection, and upon the strength of it the jury, found a verdict for the defendant.

Was this evidence admissible ?

The testimony of both the counsel in the former suits, by whom the written agreement above referred to'was made and signed, tends to show, that at the November term, 1864, in order to bring about a rendition of judgment in his client’s fayor in those suits without the trouble and expense of a trial then imminent, the plaintiff’s counsel authorized the counsel for the defendant to say to him, as an inducement to enter into the agreement for the disposition of the suits, that it would be a full and final settlement of all matters up to that time; and that it was further agreed between them, that the plaintiff should lease the land to the defendant, in interest for a certain time thereafterwards at a specified rent, which he accordingly did.

• If it could be maintained that the object and effect of this evidence must be to contradict, vary, or in any manner to control the legal import of the written agreement between the parties, its admission could not be sanctioned. But on a careful examination it will be seen, that there is nothing inconsistent with the written *373 stipulations of tlie parties, and that the parol evidence is offered to establish a distinct collateral agreement between the same parties, which was not required to be in writing,' and 'which, in fact, constituted in part the consideration of the written agreement. The authorities are abundant, that proof of such an agreement, not inconsistent with the terms of the writing, may be made by parol evidence. Jeffrey v. Walton, 1 Starkie, R. 213. Preble v. Baldwin, 6 Cush. 557 . Nickerson v. Saunders, 36 Maine, 413. Hersey v. Verrill, 39 Maine, 271. Goodspeed v. Fuller, 46 Maine, 144. Starlde on Evidence, Part IV. vol. 3, p. 1049.

The specific agreement as to the mode and time of entering up judgment in the previous suits between these parties did not necessarily embrace all the stipulations made by them as to their settlement. That agreement has been allowed to have its legitimate effect. Under it the plaintiff had judgment for the land which he claimed, and the case finds that the demanded premises were surrendered to him upon the recovery of that judgment.

There is no rule of evidence which precludes the defendant from asserting and proving, by oral testimony, any distinct and valid parol contract of the plaintiff, made at the samo time and not reduced to writing, which is not in conflict with the provisions of the written agreement, and which undoubtedly operated as an inducement to the defendant to enter into it.

The case seems to be fairly within the rale laid down in the authorities above cited, and should be governed by them.

It is further claimed, as ground for a new trial, that the defendants counsel testified that he certainly should not have agreed to the settlement if he had not supposed it was an end to all controversies between these parties. No specific objection appears to have been made to this at the time of the trial. The only objection then presented was the general one to the reception of parol evidence to prove the relinquishment of the claim here in suit. If other objections were to be urged to particular portions of the testimony, the attention of the presiding judge should have been called to them. It is too late now. Longfellow v. Longfellow, 54 Maine, 240. White v. Chadbourne, 41 Maine, 149.

*374 The plaintiff further complains, that the jury were instructed that counsel had authority to settle the subject-matter of this suit as incident to the former suit in which they were employed.

The duties, obligations, and authority of counsellors and attorneys at law, who are employed to maintain and protect them clients’ interests in our courts, have often been held to extend not only to the suit in which they are immediately and directly employed, but to other processes growing out of the same and naturally connected therewith. Marco v. Low, 55 Maine, 549, and cases there cited.

We do not hesitate to say, that the employment of a counsellor and attorney at law to prosecute a suit for land of which the party alleges that he has been disseized, carries with it an authority to such attorney, to compromise the claim against the disseizor for mesne profits during the pendency of the suit if he deems it best for the interest of his client to avoid all the chances of litigation and secure the speedy and successful termination of the principal suit in the most economical manner thereby.

The plaintiff has performed (apparently not to his own disadvantage) one of the verbal stipulations embraced in that adjustment. The jury have found that he made another, by which, if made by him or his lawfully constituted attorney, he must be content to abide. The sufficiency of the whole evidence to justify the finding is not in question before us. Exceptions overruled.

Appleton, C. J.; Kent, Walton, Danforth, and Tapley, JJ., concurred.