Segal v. Allied Mutuals Liability Insurance , 285 Mass. 106 ( 1934 )

Wait, J.

These are actions of contract for breaches of the defendant’s agreements to pay stated sums in settlement of actions of tort brought by the several plaintiffs against alleged tortfeasors insured by the defendant against the liability declared upon. They are before us upon appeals by the defendant from orders of an Appellate Division dismissing a consolidated report.

There was evidence which would support findings that agents of the defendant authorized to settle claims pending against the defendant or those holding policies of insurance issued by it, on or about May 12, 1932, agreed orally with the attorney for the plaintiffs to settle their pending suits and to pay in one case $4,850 and in the other $865 on receipt of releases executed by the clients; that releases sufficient to protect the defendant and its policy holders were delivered to and received by the agents on or before May 27, 1932; that the authority of the agents was revoked on May 27 after the releases had been received. The trial judge found for the plaintiffs. He admitted testimony of the agents that they had agreed as alleged, and their testimony with regard to what they did in the course of their action for the defendant and their authority to act for it. He also refused to give certain requests presented "by it. At the defendant’s request he reported the rulings, findings of facts and refusals to rule to the Appellate Division.

There was no error in the admission of evidence. An agent may testify with regard to his authority. Haney v. Donnelly, 12 Gray, 361. DuBois v. Powdrell, 271 Mass. 394, 397. And what he has done in the ordinary course of transacting his principal’s business and the title he has been permitted to use are admissible to prove the scope of his authority. Gibson v. Contract Water Proofing Co. 277 Mass. 455.

Most of the requests were refused because they stated or implied as facts findings which were not made. The defendant argues that the findings made upon which the refusals rested were not sustained by the evidence; but as no requests proper to raise the question of the sufficiency of the evidence were presented, the right so to argue was not open. Reid v. Doherty, 273 Mass. 388.

The statute of frauds was not pleaded. No question thereunder is open. The defendant concedes that any request based upon the absence of a written agreement or memorandum of the agreement was denied properly. The answer, beyond general denial and payment, was that no release or agreement for judgment was executed, or, if any, it was not executed by persons authorized by the defendant. Releases in both cases were put in by the plaintiffs. The argument now addressed to us that there was no evidence of execution by the plaintiffs is not sound. The plaintiffs pleaded the giving of releases. They put in evidence releases purporting to be signed by them. It was not open to them to contradict them. The judge without more could find as fact that the plaintiffs executed releases, and delivered them.

The defendant has never paid the amounts agreed upon. It has answered in defence, lack of authority in its agents to agree to pay them. In the absence of evidence of presentation of other grounds of refusal, a finding that lack of authority was the defence relied on is justified. The judge found as facts that the agents made the agreement alleged, and had authority so to do. No error appears therein, even if the defendant now could challenge the finding.

The substantial contention of the defendant is that here no binding contract was ever made, that the giving of releases in the absence of an agreement binding on both parties is nugatory, that the plaintiffs still have actions pending against the tortfeasors, and that no consideration appears to support liability. Its difficulty is that the judge, on evidence legally permitting it, found that there was an agreement made to settle, that releases effective to end the tort suits were given in accord with the agreement and were accepted by the defendant through agents who then had authority to accept. No question of consideration remains. The promise of the plaintiffs’ attorney on their behalf to settle and the promise of the defendant’s agents to pay if releases were given were consideration one for the other. There was "legal detriment to both promisees. If the agreement be taken to be unilateral, an offer to pay if releases were given, the result is the same. Releases were given before the offer was withdrawn. Either way a good contract liability is made out. Such agreements for settlement are valid. Hunt v. Brown, 146 Mass. 253. Blount v. Wheeler, 199 Mass. 330. See Finkelstein v. Sneierson, 273 Mass. 424. We need not consider the status of the tort actions. White Sewing Machine Co. v. Morrison, 232 Mass. 387. The plaintiffs have given releases under seal. The defendant has them. If it uses them the tort suits are ended. The plaintiffs have lost .control. Their damages they get only in these actions.

Order of Appellate Division affirmed.