
    FRANCIS J. COSTELLO vs. HAROLD T. STEWART.
    Middlesex, ss. Northern District Third District Court oe Easter'n Middlesex
    Argued November 17, 1941
    Opinion filed January 5, 1942.
    Present: Jones, P. J., Sullivan & Wilson, JJ.
    
    
      H. C. Thompson, F. P. Hurley, for the Plaintiff.
    
      S. Kalesky, McHugh & Sisson, for the Defendant.
   Wilson, J.

This is an action of tort in which the plaintiff seeks recovery under Count 1 for personal injuries, and under Count 2 for property damages sustained as the result of an automobile collision. The defendant’s answer, so far as now material, is a general denial.

On February 20, 1941, while said action was pending, counsel of record for the plaintiff and defendant filed in said action and signed by counsel for both parties, an agreement for “Judgment for the plaintiff Count 1— Seventy-five Dollars, without costs, and a further entry made of Judgment Satisfied.”

On May 15, 1941, the parties each then represented by the same counsel filed the following agreement, signed by said counsel:

“Agreement to Vacate Entry of Judgment and Judgment Satisfied
It is hereby agreed that in the above entitled action that entry, of ‘Judgment for the plaintiff and Judgment Satisfied’ heretofore made herein be vacated.”

Said last named agreement was approved Avithout objection by Arthur P. Stone, Justice of said Court, on May 15, 1941, and on that day the plaintiff, by the same attorney, filed a motion to amend his declaration by “striking out Count 1 thereof Avith reference to personal injuries.” Said motion to amend was allowed by said Justice. No objection or request for a report was ever made to said Justice or any justice of said court, except as hereinafter stated, and the action remained upon the docket of said court continued generally. The case came on for trial at a later date before a Special Justice of said court who found for the plaintiff on said Count 2. Both parties were then represented by other counsel. The defendant before argument filed certain requests for rulings, all of which were waived by him except No. 10, 11 and 12 which are as follows :

10. Upon all the evidence the plaintiff is not entitled to recover on Count 2 of the plaintiff’s declaration and the defendant specifies as grounds for this request as follows:
A. The plaintiff cannot maintain this action for the reason that counsel for the plaintiff and the then counsel for the defendant executed an Agreement for Judgment, which provided that “Judgment may be entered for the plaintiff in_Count 1 of the plaintiff’s declaration, and that there be a further entry of Judgment Satisfied.”
B. A single cause of action cannot he split and made the basis of several proceedings.
C. An. agreement for judgment such as has been filed in this case cannot be vacated by the subsequent agreement of counsel for the parties., nor can the Court order that such a judgment be vacated, where the order is predicated upon the agreement of counsel to vacate the judgment.
D. Where a final judgment has been entered and the execution has been satisfied a motion or petition to vacate judgment will not lie.
See Gen. Laws, (Ter. Ed.) Chapter 250, Sec. 15.
E. An Agreement for Judgment and Judgment Satisfied wipes out the cause of action even though the cause of action is one whereby because of a single negligent act damages result to one’s person, and/or to his property. Dearden v. Hey, 304 Mass. 659.
11. The so-called Agreement to Vacate Judgment on Count 2 is of no legal force and effect.
12. There is no issue before the Court for its determination on Count 2 of the plaintiff’s declaration for the reason that an Agreement for Judgment on Count 1 and Judgment Satisfied was filed, which closes and determines the entire action.

The trial court denied said requests and made certain special findings of fact. So much thereof as are now material are the following:

“No evidence was offered relative to the allowance of the motion (by agreement of parties) to vacate the judgment previously entered or on the matter of satisfaction of said judgment. The defendant conceded the authority of Sawyer, Hardy, Stone & Morrison to act for the defendant on the agreement to vacate said judgment.”

Whether the issues argued are properly before us, in the absence of a report showing that they were raised before the justice who allowed the judgment to be vacated and, reported by him, as required by Ch L. (Ter. Ed.) c. 231, §108, has not been argued and we do not decide.

The most important of the issues before us is whether under the circumstances set forth in the report, where by agreement the counsel of record for both parties, having signed and filed an agreement for judgment and judgment satisfied, can later by agreement, so signed and filed and approved by the court, vacate such a judgment and restore the case to the list for trial.

The agreement for judgment and judgment satisfied was by its terms confined to Count 1 and that agreement was binding upon both in the absence of fraud.

In Brooks v. Twitchell, 182 Mass. 443, in which there was a motion to vacate a judgment, assented to in writing by attorneys of record, for the judgment creditor, where there had been a failure to enter an appearance because of an agreement between counsel for the plaintiff and the defendant, resulting in a default and judgment, it was said at page 447:

“We see no good reason why if the same court which entered the judgment and all the parties to it assent in writing upon the record that the judgment shall be vacated and the case brought forward and tried this cannot be done.”

It is to be noted that in the case of Brooks v. Twitchell the judgment was still unpaid, whereas in the case at bar the agreement recited that it was satisfied.

So far as appears from the report the counsel who then represented both parties were fully empowered to make the agreements made by them in behalf of the parties and the same were entered into without fraud. See G-. L. (Ter. Ed.) c. 231, §72.

In Dalton v. West End Street Railway, 159 Mass. 221, 223, it was said:

“In practice the assumed authority of attorneys of record to agree upon the amount of judgment to be entered, or to any other disposition of the suit, must be recognized by the court, and when entered of record such agreements are binding upon the parties, unless the court for good cause shown permits them to be withdrawn, or vacates any order founded upon them. But when the court is informed that they have been made against the express prohibition of the client, and the parties can be put in statu quo, we are of opinion that the court has the power to vacate any judgment founded upon them, and to order such an agreement off the files, if the application is seasonably made.”

See also Medford v. Corbett, 302 Mass. 573, 574.

It seems clear (1) that the court had authority because of the general agreement of the parties and the approval of the court to vacate said judgment, and (2) that this right still existed, even though the judgment purported by the terms of the agreement to be satisfied, where the parties could be restored to statu quo; and (3) it must be presumed because of the agreement to vacate the judgment that the rights of the parties could be and were so restored.

The plaintiff never agreed to settle for any damages claimed by him under Count 2 of his declaration. He was agreeing only that he would not pursue further personal injuries as an element of damage and still reserved his right to pursue his claim for property damage. This agreement he had a right to have the court enforce. Brooks v. Twitchell, 182 Mass. 443. His attorney had no right to enter any other agreement of record. His attorney by virtue of his general employment had broad power and could do the things necessary or incidental to the prosecution and management of the case which would effect the remedy, but had no such authority to deal with the cause of action itself. Precious v. O’Rourke, 270 Mass. 305, 308, and cases there cited.

There is nothing in the decision in Dearden v. Hey, 304 Mass. 659, requiring a conclusion different from that here reached by us. There the plaintiff attempted to bring a new suit for personal injuries after one for property damage had been disposed of by the return of an execution satisfied. There was no attempt to vacate the judgment and the decision in the former action was, therefore, conclusive of all the rights of the plaintiff.

In the instant case both personal injuries and property damage were claimed in the same action but in separate counts. While such an action was pending, an agreement by the plaintiff that for a consideration he would forego making a claim for personal injuries was good. It could not affect his right to still press his claim for property damages as set out in the second count of his declaration in the same action.

The record contains no prejudicial error and the report is dismissed.  