Attorney at Law. Accord and satisfaction. Agency. Whether an agreement to settle a case made by the defendant with the attorney for the plaintiff, and a payment in pursuance thereof made by the defendant to such attorney and received by him in full settlement and satisfaction of the plaintiff's claim, would bar the further prosecution of that claim, if the settlement was made without authority from the plaintiff and contrary to his instructions although he had employed the attorney generally in the case and the limitation of his authority was not known to the defendant, it here was not necessary to determine, because it appeared that the defendant understood that the attorney for the plaintiff did not have full authority to settle the case, and there was no evidence warranting a finding that an absolute agreement of settlement was made with the plaintiff's attorney.
Where in an action for personal injuries the defence relied upon is a settlement alleged to have been made with the plaintiff's attorney, if it appears that by the terms of the alleged settlement the plaintiff's attorney was to procure a release from the plaintiff and that no payment was tendered in behalf of the defendant until the plaintiff's attorney had delivered to the defendant a paper purporting to be such a release, of which the signature was forged, this shows that the defendant understood that the plaintiff's attorney did not have full authority to settle the case, and there is no evidence warranting a finding that an absolute agreement of settlement was made with the plaintiff's attorney.
MORTON, J.
If Smith had made a final settlement with the defendant and the amount agreed upon actually had been paid by the defendant to Smith and received by him in full settlement and satisfaction of the plaintiff's claim, a different question would be presented from that which now arises, though we do not mean to intimate that even then the plaintiff would have been bound by the settlement. But the undisputed testimony shows that the parties understood that Smith did not have full authority to settle, since he was to procure a release from the plaintiff as one of the terms of the settlement, and it was not until what purported to be a release from the plaintiff, but which was in fact a forgery, was furnished by Smith, that a check was sent by the defendant to the plaintiff for the amount which had been agreed upon between Smith and Reynolds. The plaintiff returned the check and discharged Smith, and so notified the defendant, and repudiated the attempted settlement as he had the right to do, and it fell to the ground leaving the plaintiff to take such further action, if any, as he chose. The subsequent tender availed nothing. It is sufficient to say, of the only instruction amongst those requested now relied on by the defendant, that there was no evidence which would have warranted the jury in finding that Smith agreed absolutely with Reynolds to settle.
Exceptions overruled.