Attorney's authority to refer pending cause.
If the facts found by the court, as to what occurred at the time the agreement was signed, were to be considered in determining the construction or validity of the writing, I should infer that Mr. Hobbs, as attorney of the town must have acceded to the view of the chairman of the board of selectmen, that the disposition of the cause agreed to by the selectmen was such as the town would approve, before he signed the paper in the way he did. However that may be, he did, in fact, sign it as attorney for the town, and not as the agent of the selectmen, as the defendants' counsel have contended in argument. The question, therefore, seems to be, in effect, whether an attorney, by an agreement is writing, which purports to be made in court and in such form as to constitute part of the record of a pending suit, may bind his client to a reference of such suit.
Upon an examination of our own cases, where the power and authority of an attorney in the management and disposition of his client's case are considered, I am of opinion that an agreement to refer comes within the scope of that authority. Alton v. Gilmanton, 2 N.H. 520; Hanson v. Hoitt,14 N.H. 56; Spaulding's Appeal, 33 N.H. 479; Pike v. Emerson, 5 N.H. 393. In the latter case, the court say, — "So, an agreement by an attorney to refer a cause is binding upon his client." The remark was not necessary to the decision of that case; but, that such seems to be the general understanding as to causes pending in court, see 2 Gr. Ev., sec. 141, 1 Pars. on Con. 117, and cases referred to in notes. My conclusion is, that there should be judgment on the report.
I think there can be no doubt, that an attorney has authority to bind his client by an agreement to refer an action. Pike v. Emerson, 5 N.H. 393. It was, therefore, of no consequence whether the selectmen had authority to refer the action or not. It is enough that the attorney was satisfied, by the representations of the
chairman of the board of selectmen, that the town would acquiesce, and thereupon signed the agreement as attorney. It is of no consequence that the selectmen directed it, because, as the attorney of the town, he should not have undertaken to act as the attorney of the selectmen. I think, therefore, it must be held that in signing that agreement he assumed the responsibility, and that the town is bound thereby. The evidence, therefore, if admitted, would be of no consequence.
SMITH, J. The agreement which the defendants seek to evade purports to have been entered into in court at the February term, 1875, and thus has become a part of the record in this suit, or, as expressed in Alton v. Gilmanton, 2 N.H. 520, "a portion of the materials from which the record is to be made up." In that case, WOODBURY, J., said, — "We will not suffer counsel, nor their clients, to depart from it, unless on evidence to us that the agreement was made by mistake, fraud, or surprise." As nothing of that kind is pretended here, no reason appears why this agreement should not be enforced. That counsel for the town had authority to make it, by virtue of his general retainer, does not admit of doubt. An attorney may waive objections to notice service, and to the form of the writ — Alton v. Gilmanton, supra; he may waive the right of appeal — Pike v. Emerson,5 N.H. 393; he may enter into agreements which will be held conclusive evidence of the facts agreed to — Alton v. Gilmanton, supra, Burbank v. Insurance Co. 24 N.H. 552, Goodrich v. Eastern Railroad, 38 N.H. 390, Page v. Brewsters, 54 N.H. 184, 1 Gr. Ev., secs. 27, 186; he may take an appeal from the probate court, — Spaulding's Appeal, 33 N.H. 479, — and may waive statutory prerequisites to an appeal — Hanson v. Hoitt, 14 N.H. 56; and, generally, he may make any admissions of fact or disposition of the suit which his client could make — 1 Salk. 86, Tidd 34; and his agreement to refer a cause is binding upon his client — Pike v. Emerson, supra. For any misconduct, his client has a legal remedy against him — Bunton v. Lyford,37 N.H. 512, Smyth v. Balch, 40 N.H. 363.
Exceptions overruled.