Opinion
No. 3083.
Decided June 22, 1939.
TROVER, by a sheriff for five hundred silver dollars attached by the plaintiff in an action brought by the plaintiff in interest against Wilbert Lavoie and receipted for by the defendant. The original action went to judgment for $324.
After the judgment was rendered, Miss Lesieur, an employee of Lavoie, went to New York to discuss a settlement with McTee. She was referred to Samuel Albert, general manager of a collection agency acting for McTee. To Albert she represented without fraud that Lavoie was on the verge of bankruptcy. As a result a settlement was agreed to, and Albert, in the name of the agency, wrote Lavoie: "We have agreed on behalf of creditor to accept the sum of $50.00 in full settlement . . . of all claims. The contract is to be considered cancelled." It was understood that the settlement was to be effected by payment to James A. Broderick, McTee's attorney in New Hampshire.
Accordingly Miss Lesieur paid $50 to Mr. Broderick, who gave her a receipt "in full payment debt and costs McTee Co., vs. Wilbert Lavoie." McTee refused to accept the money from Broderick, claiming that it had been agreed by Albert and Miss Lesieur that she was to pay costs to Broderick in addition to the $50. Miss Lesieur denied that it was agreed that costs should be paid. Demand followed upon Lagasse for the costs, and the action for Trover was begun.
Hearing by a referee, who found the foregoing facts in substance. The referee also found that there was no agreement to pay costs and that "the agreements and releases given by the parties at that time express the mutual understanding of the parties and that the settlement of the judgment by McTee against Lavoie should stand." He recommended that judgment be entered for the defendant Lagasse, "the claims upon which he became surety or guarantor, as the case may be, having been paid in full, discharging him from liability."
The court accepted the report and ordered judgment for the defendant. The plaintiff excepted, and the question of law raised by the exception was transferred by James, J.
Maurice A. Broderick, for the plaintiff, furnished no brief.
Alvin A. Lucier, for the defendant, furnished no brief.
The record contains no evidence except the letter from Albert to Lavoie and the receipt given by Mr. Broderick to Miss Lesieur. The former sustains the finding of the referee that it was agreed that $50 should be paid and received in full settlement. The ruling made necessarily follows the finding.
Judgment affirmed.