Dweck v.
Nasser
i.
Facts – After
engaging in a lengthy dispute with the plaintiff, the defendant suggested to an
attorney friend that he just wanted him to settle the matter, but when the
attorney accomplished that task, the defendant refused to be bound by the terms
of the settlement agreement.
1.
Principal –
Nasser
2.
Agent – Shiboleth
3.
Nasser’s Attorney
of Record – Heyman
ii.
An attorney of record in a pending action who
agrees to the settlement of a case is presumed to have lawful authority to make
such an agreement.
1.
Employment
relationship alone does not give attorney authority to settle a case on behalf
of client. Client retains control.
iii.
Three Sources of Agency Relationship
1.
Actual
Authority – Expressly granted authority either orally or in writing.
2.
Implied
Authority – Derivation of actual authority and
often means “actual authority either (1) to do what is necessary, usual,
and proper to accomplish or perform an agent’s express responsibilities or
(2) to act in a manner in which an agent believes the principal wishes the
agent to act based on the agent’s reasonable interpretation of the principal’s
manifestation in light of the principal’s objectives and other facts known to
the agent.”
a.
Authority that
agent reasonably believes he has as a result of the principal’s actions.
b.
May be proved by
evidence of acquiescence of principal with knowledge
of the agent’s acts, and such knowledge and acquiescence may be shown by
evidence of the agent’s course of dealing for so long a period of time that
acquiescence may be assumed.
3.
Apparent
Authority – “Such power as a principal holds his agent out as possessing or
permits him to exercise under such circumstances as to preclude a denial of its
existence.”
a.
When the
principal permits the agent to do something that would allow the principal to
be seen as holding the agent out as his
agent, then the agent has apparent authority.
b.
Depends on the
perceptions of third parties.
c.
Rest. (3d) of
Agency § 2.03 – “Apparent
authority is the power held by an agent or other actor to affect a principal’s
legal relations with third parties when a third party reasonably believes the
actor has authority to act on behalf of the principal and that belief is
traceable to the principal’s manifestations.”
iv.
Shiboleth had
actual and implied authority.
1.
Actual Authority
a.
Nasser said, “Do
what you want;” “You can talk in my name;” etc.
These are powerful grants of broad, actual authority. Important touchstones.
2.
Implied Authority
a.
Context suggests
implied authority. Look at the history
of the relationship between Nasser and Shiboleth.
3.
Apparent
Authority
a.
Nasser said to the
other parties that he would not read the settlement agreement and that he would
sign it if Shiboleth recommended it.
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