54 N.H. 184 | N.H. | 1874
I. The agreement in question was entered into for the purposes of the suit, and not merely for the case that was transferred. An agreement entered into for the purposes of the suit, must mean not only for determining the questions of law raised by the case, but for any and all subsequent proceedings to the close of the suit. There was no provision inserted that tlie facts should be considered as agreed to only for the purposes of that case, or that they should not be used as evidence before the jury, as is usual where such is the intention of the parties. It is to be presumed that only such facts were agreed to as were necessary to determine the questions then raised, and that if the defendants should elect a trial by jury such other competent testimony as either party might wish to introduce would be offered for the consideration of the jury. It will hardly be pretended that the facts stated were untrue, or that a fictitious case has been presented to the court. The court certainly would not encourage such a practice. Austin v. Wilson, 7 Mass. 205.
That counsel can enter into agreements which will be held to be conclusive evidence of the facts agreed to is well settled. Alton v. Gilmanton, 2 N. H. 520; Burbank v. Insurance Co., 24 N. H. 552; Goodrich v. Eastern R. R., 38 N. H. 390; 1 Gr. Ev., secs. 27, 186. Such admissions are those made in a ease stated for the opinion of the court. Ib., sec. 205.
But “ an agreed case will be discharged if it is made to appear that through fraud, accident, mistake, or misapprehension the case embraces matters which did not exist, or does not contain facts which did exist at the time of the agreement and transfer, and which were material to a proper determination of the rights of the parties.” Wells v. Iron Company, 48 N. H. 526; Gregory v. Pierce, 4 Met. 480. But the power to set aside an agreed case “ will be exercised with great care and caution, and be applied only upon strong ground that the case is not what the parties intended to make it, and that the result has been brought about by fraud, accident, or mistake.” Heywood v. Wingate, 14 N. H. 76. Such an application is addressed to the discretion of the court, and requires an extraordinary exercise of their powers, which can be allowable and proper only when it is made clear that it is necessary to prevent injustice. But it is very unusual to set aside a case for the purpose of enabling a party to remedy upon a new trial any mistake lie discovers he has made in relation to the law applicable to his case, especially where it is not suggested that the case fails to state truly the occurrences upon the trial so far as they are material to the points designed to be raised. Richardson v. Huggins, 23 N. H. 119.
The affidavit which accompanies the defendants’ brief is offered, we suppose, for the purpose of showing that there was some “ accident, mistake, or misapprehension ” on the part of their counsel at the time
If all the evidence and statements in the briefs on both sides are properly before us, we are compelled to hold that there is no such preponderance of testimony as will entitle the defendants to relief against the use of the agreed case in evidence. It is not pretended that the agreement was obtained by fraud or misrepresentation. It was entered into on behalf of the defendants by Counsel of large experience and ability. The proposition for an agreed case seems to have come from him. The case, as drawn by the plaintiff’s counsel, was submitted for 1ns consideration. He had full opportunity to examine it, and amended it in some particulars. We fail to discover anything that was said or done whereby any fault can be attributed to the plaintiff.
But, assuming that the defendants’ counsel misapprehended the force-of the agreed case, and that there was such accident or mistake attending its execution as would call for relief from the court, before exercising that power we feel bound to inquire how the plaintiff would in that case be left; because, if the plaintiff is without fault, he should not be made to suffer for the mistake or negligence of the defendants. It is claimed by the plaintiff that the witnesses, by whom important facts contained in the agreement could have been proved, have died since the agreement was made, and that the only hope of the defence is that these facts cannot now be proved at a trial; and this is not denied by the defendants.
The plaintiff claims that at the October term, 1871,' he was pressing the case for trial; that the defendants offered to agree upon the facts; that the plaintiff objected to any agreement, and preferred a trial because he apprehended he might lose his witnesses by death or otherwise, and spoke of taking their depositions; that his counsel assured him the agreement would supersede the necessity of a trial, as the facts once agreed upon would be established forever; that he thereupon assented, and the defendants’ counsel were notified that the plaintiff would consent to waive a tidal upon no other terms; that the plaintiff’s counsel would not have signed the agreement if he had supposed it to be revocable, and that the facts stated in the case could have been proved at the time. Assuming the facts to be as claimed by the plaintiff, it is manifest that the defendants can be relieved from this agreed case only at the expense of the plaintiff; and inasmuch as there was no fraud, mistake, or negligence on his part, but, on the contrary, as the defendants are guilty of whatever laches or negligence do appear, we are compelled to deny their motion to discharge the case.
II. The motion for a continuance was one addressed purely to the discretion of the judge who tried the cause, and cannot be revised.
III. The facts which the defendants offered to prove were properly rejected.
1. The first is immaterial. The case finds that Charles W. Brewster was indebted to Harriet Brewster, and the writing contains his promise to pay her the money when she may require it. If this agreement
2. The offer to prove that said Harriet admitted that she was not to call for any part of the principal sum unless it was necessary for her support, was properly rejected. Such evidence would contradict the written agreement declared upon, and was not therefore admissible. The agreed case admits that she did call for the money. The question whether it was necessary for her support was decided by her, and the defendants had paid out nearly $400 for her support.
3. The offer to prove an agreement with Lewis W. Brewster that she would surrender the writing upon certain terms was properly rejected, for the double reason that said Lewis W. never complied with the terms so as to be entitled to a surrender of the writing; and if such agreement was ever made, it was an agreement made not with one acting for and in behalf of Charles W. Brewster, but independent of him. It is a nude agreement inter alios.
4. The offer to show that said Harriet agreed that in consideration of the payment of $393.50 of the principal in August, 1869, she would not call for any more of the principal sum, sets up a verbal release without consideration. “ Nothing is better settled than that a promise without some kind of a consideration to receive a less sum in payment of a greater, is of no effect.” Fisher v. Willard, 20 N. H. 424; Clark v. Dinsmore, 5 N. H. 139.
5. The next offer stands upon the. same ground, and cannot be maintained.
6. The offer to show that she was not of sufficient capacity to make the last demand was immaterial. The previous demand had fixed the liability of the defendants, and no subsequent demand was necessary. 52 N. H. 52.
The exceptions must be overruled, and there must be
Judgment on the verdict.
