Beliveau v. Amoskeag Manufacturing Co.

40 A. 734, 68 N.H. 225

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1894
• Status: Published

Opinions

The rights of the defendants are not affected by the plaintiff's undisclosed discharge of C. So long as she permitted him to remain her attorney of record, she was bound, as against parties ignorant without fault on their part of his discharge, by any act that by virtue of his retainer he was authorized to do. Lewis v. Sumner, 13 Met. 269.

It is the constant practice of the court to enter defaults, judgments, assessments of damages, judgments for the defendant, judgment satisfied, and to make various other orders finally disposing of actions, upon the agreement of the counsel for the parties expressed orally in open court. These orders have the same effect as if made upon the personal consent of the parties. In the absence of fraud or mistake, they are conclusive. The authority of attorneys to make such agreements is in practice never questioned. It is essential to the orderly and convenient dispatch of business, and necessary for the protection of the rights of the parties. Exigencies are frequent where the want of power on the part of the attorney to dispose of the action finally by agreement made in and under the sanction of the court, would be disastrous to his client. The interests of the public and of the parties to actions alike require that executed agreements of the character in question be not disturbed except, as in other cases, for fraud or mistake. It is not now necessary to consider the question of the extent of an attorney's authority to bind his client by agreement in pais, in collateral matters, or in what cases his executory agreements will be enforced. Daniels v. New London, 58 Conn. 156; Alton v. Gilmanton, 2 N.H. 520; Fernald v. Ladd, 4 N.H. 370; Pike v. Emerson,5 N.H. 393; White v. Hildreth, 13 N.H. 104; Hanson v. Hoitt, 14 N.H. 56; 56; Bryant's Case, 24 N.H. 149; Bunton v. Lyford, 37 N.H. 512; Smyth v. Balch, 40 N.H. 363; Lisbon v. Holton, 51 N.H. 209; Brooks v. New Durham,55 N.H. 559; Everett v. Bank, 58 N.H. 340.

For the disposition of the present motion, it is enough to say that in the absence of any limitation of his authority known, or that by reasonable inquiry might be known, by the opposite party, an attorney may by oral or written agreement entered on the record, made an order of court, and executed by the adversary in good faith, bind his client to a final disposition of the action. That the agreement and order of court thereon effect a compromise of the client's cause of action is an immaterial circumstance. Swinfen v. Swinfen, 18 C. B. 485 (1 C. B. N. S. 364; 2 DeG. J. 381); Swinfen v. Chelmsford, 5 H. N. 890; Fray v. Voules, 1 E. E. 839; Prestwich v. Poley, 18 C. B. N. S. 806; Strauss v. Francis, L. R. 1 Q. B. 379; Matthews v. Munster, 20 Q. B. Div. 141; Holker v. Parker, 7 Cranch 436.

Motion denied.

SMITH and CHASE, JJ., did not sit: the others concurred.

The plaintiff moved for a rehearing, and specially called the attention of the court to the authorities holding that an infant cannot employ an attorney or an agent, or make a valid agreement to compromise his suit; and that the next friend of an infant is not his agent or attorney, but an officer of the court.