Opinion
No. 4878.
Argued November 2, 1960.
Decided November 30, 1960.
1. A definite and complete agreement entered into between counsel for the parties for the accommodation of the defendant in a tort action whereby certain funds under attachment were released and a bulky articles attachment substituted therefor was within the scope of defendant's attorney's authority and such agreement was held binding upon subsequently engaged counsel in a motion to reduce the total attachment as excessive.
ACTION, on the case in which the plaintiff seeks to recover damages for personal injuries received in an explosion of gas, based on the alleged negligence of the defendant's agents and servants. The plaintiff commenced his action by a writ with an ad damnum of $100,000 dated October 27, 1959, and returnable the first Tuesday of December. He attached certain real estate of the defendant and trusteed its bank account which amounted to $52,000. On November 30, 1959, the defendant filed a motion for a reduction and discharge of the attachment, which was heard on December 3. The Superior Court, on the same date, denied the motion except it ordered that $7,000 of the defendant's cash trusteed in the bank be released. The defendant appealed from the Court's order in so far as its motion was denied and from certain rulings of the Court admitting and excluding evidence.
Attorney Robert D. Branch first represented the defendant, and the plaintiff claims that Branch, being fearful that a second attachment would be made in another suit and because there was some $20,000 to $30,000 of checks outstanding on the account, sought release of the trustee process by agreement with Attorney Francis E. Perkins, representing the plaintiff. The plaintiff further alleges that by an agreement reached by these attorneys on November 3, $35,000 of the $52,000 attached was released outright to the defendant, the remaining $17,000 was placed in an escrow account, and the trustee was discharged. The attorneys also stipulated that the defendant should substitute a bulky article attachment consisting of chattel vehicles, which was done. The value of the bulky article attachment and of the real estate also under attachment was to be determined to the satisfaction of the plaintiff's attorney. Thereafter such portion of the $17,000 held in escrow was to be there retained as, together with the other security attached, would give the plaintiff $40,000 worth of security, in addition to a $50,000 liability insurance policy which was held by the defendant. The remainder of the $17,000 was to be released to the defendant. However, until the determination of values was made the entire $17,000 was to remain in escrow to satisfy any judgment the plaintiff might obtain.
After this arrangement was made, the defendant discharged Branch and engaged present counsel, who claims that the agreement is void as made without the knowledge and consent of his client. Present counsel for the defendant thereupon filed the motion under consideration, which was heard on December 3, 1959. At this hearing the plaintiff agreed that for the purposes of the hearing he would accept a valuation aggregating $40,000 for the real estate and vehicles.
Further facts appear in the opinion.
Transferred by Morris, J.
Francis E. Perkins and McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), for the plaintiff.
Paul A. Rinden (by brief and orally), for the defendant.
The plaintiff claims that the "only issue in this case is whether, under the circumstances, the Trial Court's order is `what justice requires,' where the attachment problem had been adjusted by agreement of counsel prior to the filing of the motion, except with respect to the final adjustment on the $17,000 held in escrow." The defendant denies that any agreement was made and argues that the plaintiff has not sustained his "burden of proof to show that the attachment is not excessive or unreasonable" as provided by RSA 511:53 (supp).
The record discloses ample evidence upon which it could be found that the defendant originally employed Robert D. Branch to represent it and that he made the agreement as to the attachment with counsel for the plaintiff, as the latter claims. This was the view taken by the Court, which stated that where an attorney representing a party made an agreement, even though he was later discharged, "the agreement which was made should be carried out."
There is nothing on the record to indicate that when Attorney Branch entered into the arrangement with plaintiff's attorney, he exceeded his authority by dealing in the customary manner with matters affecting his client's interests. The authority of an attorney is broad and includes making such an agreement as was made here. Barry v. Bartis, 85 N.H. 202, 204. The confusion and highly undesirable consequences which would result were clients permitted to discharge counsel who had represented them in negotiations and thus disavow at pleasure the commitments made by them, are too plain to require delineation. In this state, agreements between attorneys have been scrupulously upheld by the court. Burtman v. Butman, 94 N.H. 412, 415-116; Couillard v. O'Connor, 97 N.H. 89. We see no reason to depart from this principle.
The terms of the arrangement between counsel were definite, complete and are enforceable. Dedes v. Dedes, 93 N.H. 215, 217; Restatement, Contracts, s. 32. It was clearly findable that the agreement, involving the release of substantial sums of cash urgently needed by the defendant to meet outstanding commitments was advantageous to it. Counsel for the plaintiff having agreed that the value of the property held under attachment, inclusive of the $17,000 in escrow, was $47,000, the Court properly ordered that $7,000 of the $17,000 held in escrow be released to the defendant, leaving $90,000 worth of security under attachment. It follows that the defendant's exception to the Court's order is overruled.
What has been decided renders unnecessary consideration of whether the plaintiff has sustained the burden of showing that his attachment "is not excessive or unreasonable" under RSA 511:53.
Exceptions overruled.
All concurred.