Bizzell v. Auto Tire & Equipment Co. , 182 N.C. 98 ( 1921 )

DEFENDANT’S APPEAL.

Hoke, J.,

after stating the case: It is very generally understood, uniformly so far as examined, that an attorney at law, by virtue of his employment as such in a given case, has the control and management of a suit in all matters of procedure, and in the absence of fraud and collusion can make such stipulations and agreements as ’may commend themselves to his judgment in so far as they may affect the remedy he is endeavoring to pursue. Chemical Co. v. Bass, 175 N. C., 426; Gardiner v. May, 172 N. C., 192; Harrill v. R. R., 144 N. C., 542; Westhall v. Hoyle, 141 N. C., 338; Hairston v. Garwood, 123 N. C., 345; Henry v. Hilliard, etc., 120 N. C., 479; 2d R. C. L., title, Attorneys, sec. 63.

Under 'the principles stated it is beld in many decisions on the subject that an attorney may consent to a judgment against his client, and the same will be considered as binding, although no actual authority is shown. Under ordinary conditions, an implied authority is presumed from his office and employment. Harrill's case, supra; Stump & Sons v. Long, 84 N. C., 616, and see numerous authorities to this effect in editorial note to Tobler v. Nevitt, 45 Col., 281, appearing in 132 American State, at p. 162.

It is also fully recognized that an attorney, by virtue of his office and ordinary employment in a case, has no implied power to compromise his client’s cause of action, or to enter into stipulations or agreements which sensibly impair such client’s substantial rights and interests presented and involved in the litigation. Moye v. Cogdell, 69 N. C., 93; Gibson v. Nelson, 111 Minn., 183, and see concurring opinion of Walker, J., in Chemical Co. v. Bass, 175 N. C., 426, the same containing a helpful discussion and full citation of cases on the subject.

Though it is sometimes said that the weight of judicial opinion is in favor of upholding consent judgments entered under the implied powers of an employed attorney, some of the decisions referred to have been subjected to adverse comment by intelligent writers as trenching upon the second position stated, that an attorney may not, without express authority, enter into a compromise of the cause of action committed to him, and the sensible impairment of his client’s rights thereunder. See editorial note to Clark v. Randal, 9 Wisconsin, 135, appearing in 76 American Decisions, 252-259, and 2d R. C. L., title, Attorneys at Law, sec. 91.

And in this jurisdiction it has been expressly held that where a judgment has been taken by consent of the attorney, and it appears of record that such consent is pursuant to a compromise which sensibly impairs the client’s substantial rights and on motion made in apt time, it is established that the consent and compromise is without express authority from the client, and even contrary to his instructions, such judgment will be set aside. And the same position should obtain where, though not appearing of record, it is shown on motion and proper proof that such a judgment has been entered and the impeaching facts were known to the opposing litigant or the attendant circumstances were such that knowledge should be imputed. Bank v. McEwen, 160 N. C., 414, and cases cited.

Under these decisions, and others of like kind, and by courts of approved ability and learning, his Honor clearly had the right to deal with the questions presented in the motion, it appearing that the agreement and consent judgment entered into by way of compromise and adjustment was not only without authority, but contrary to the express instructions of the client, and that by such judgment plaintiff was precluded from insisting on her claim for $150 monthly rental, and also deprived of the $111.66% monthly rental which had been awarded her by the jury. And this case of Bank v. McEwen is authority for the position also that when the facts call for the application of the principle, its effect and operation is not prevented because the course has been taken with the sanction and approval of the court. This by no means intimates that his Honor would have permitted or signed the judgment entered had the lack of authority been made known. That was only made to appear at the later hearing, and we deem it not improper here to note also that no blame is laid by any one on the attorney who, always faithful to his client’s interest, did the duty that he thought was required of him under the circumstances presented.

"While we thus uphold the power of the court to take cognizance of'the questions presented in the motion, we are of opinion that his Honor should have gone further and set aside the entire verdict as the only lawful adjustment of the rights of the parties in the premises. It is an equitable principle, very generally recognized, that in a given transaction a man may not assume and maintain inconsistent positions to the prejudice of another’s rights. And the principle so stated is usually allowed to prevail either in court proceedings or in transactions between individuals. Ingram v. Power Co., 181 N. C., 359-411; Maxton Auto Co. v. Rudd, 176 N. C., 497; Lipsitz v. Smith, 178 N. C., 98-100; Brown v. Chemical Co., 165 N. C., 421; R. R. v. McCarthy, 96 U. S., 258.

In the case of Maxton Auto Co. v. Rudd, supra, it is said that “the position is properly referred to the doctrine of estoppel in pais, which rests in its last analysis on the principles of fraud.” From the facts presented in the record, it appears that plaintiff on the first issue had established the right to eject defendant, and on the second had recovered $111.66% monthly rental for a wrongful detention. The judge from the bench gave intimation that unless the plaintiff agreed to a reduction of the amount awarded on the second issue he would set aside the entire verdict, and the Court, on the present hearing, finds as a fact that his Honor would have done so. Acting on this, the counsel, in good faith, believing he was within his authority, consented to the reduction, and plaintiff thereby succeeded in maintaining her recovery on the first issue. We have held that the agreement, being in the nature of the compromise and contrary to the client’s instructions, could be set aside at plaintiff’s demand, but when she repudiates the benefits she must surrender the advantages that arose to her from the action of her attorney, and under a proper application of the authorities cited and the principles they approve and illustrate, his Honor should have set aside the entire verdict, thus giving the parties opportunity to relitigate the issues. This was tbe course pursued in Bank v. McEwen, supra, a case that is decisive of the principal questions presented on defendant’s appeal.

In making this disposition of defendant’s appeal we are not unmindful of C. S., 591, which requires tha,t a motion to set aside a verdict may be made before the judge who tried the cause, and only at the trial term. That statute, however, refers to motions made in the ordinary course and practice of the court, and does not and is not intended to impair or interfere with equitable principles controlling the conduct of the litigant in the subsequent course of a proceeding. As a matter of fact, the trial judge had decided to set aside the entire verdict, and at the trial term, and was only prevented from doing so by reason of the agreement which plaintiff has repudiated, and this being true, she is estopped from resisting the entry of such judgment nunc pro tunc.

On defendant’s appeal the judgment will be modified to accord with this opinion, and the costs of said appeal will be divided between the parties.

Modified.

PlaiNtief’s Appeal.

Hoice, J.

Plaintiff appeals in the cause, insisting for error that the court should have ruled that on a wrongful holding over the defendant was liable for $150 monthly rental, as a matter of law, and this, by reason of the notice given and the stipulations of the contract, that she reserved the right to raise the rent at any time, and that if any of the rent was not paid, though no demand was made, that defendant would surrender the premises on three days notice, etc.

There are authorities to the effect that where a landlord, in proper time before termination of lease, notifies the tenant that if he continues to occupy longer it shall be at a rental specified, and the tenant, after such notice received, holds over without demur or protest, there will be an obligation to pay the higher rental as specified. 2 McAdam, Landlord and Tenant (3 ed.), sec. 279. But this we apprehend is on the ground of acquiescence, and from which an implied contract to pay the higher rental could be reasonably inferred. It may be that such a principle might be extended to a case where a tenant, after such a notice given, withholds possession wantonly without any fair and reasonable belief in his right, though on this supposition we make no present decision. It is ordinarily true that the obligation to pay rent must arise out of contract, express or implied, and we are very well assured that on the facts of this record defendant may not be held to a rental of $150 as a matter of law merely on plaintiff’s notice that such an amount would be insisted on after the stipulated date, it appearing that defendant withheld possession under claim of right and with evidence on his part tending to show that by a contract subsequent to the principal lease and in consideration of valuable improvements, plaintiff had. agreed that defendant’s possession should not be disturbed within the year, which had not expired, and no witness having so far testified that the fair rental value would exceed $60 per month. On the record, plaintiff has established no contract, express or implied, for a greater rental than the fair and reasonable value of the property, and his Honor correctly held that in case a wrongful withholding should he established this should he the measure of plaintiff’s recovery. Martin v. Clegg, 163 N. C., 528; DeYoung v. Buchanan, 10 Gill & Johnson, 149.

There is no error, and on question presented on plaintiff’s appeal, the .judgment is affirmed.

No error.