Riley v. Boston Elevated Railway Co. , 195 Mass. 318 ( 1907 )

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.