Bell v. New England Malt Co.

17 A. 1059, 65 N.H. 25

Opinion

Smith, J.

The question is not whether the plaintiff is barred by the entries made in the suits pending in 1887, but whether he is precluded from maintaining this suit by the agreements then entered into. In the suit at law he agreed to make no claim for damages or costs in that suit. It is not expressly stated in the agreement that he would try his title to the stock in the other suit, but the fact that he abandoned his claim for damages in the suit at law and stipulated for such docket entries as would preserve his rights to the stock in the interpleader suit, is evidence of such agreement, and is confirmed by his statement to that effect in his additional answer in that suit. If this is not the correct view, it would seem that the parties eutered into agreements from which they understood no substantial result would follow. The improbability of their undexstandingly making futile agreements is good ground for holding that the construction contended for by the plaintiff is not what was intended.

There was a good consideration for the agreement. The defendants agreed to dismiss the suit. At the same time, Free, one of the defendants in the interpleader suit and a claimant of the stock in question, released in writing all claim to the stock, and Manning, another claimant, with Bell, in the same written agreement relinquished their respective claims for costs against Free. No reason appears why the plaintiff should not be held to his agreements. His remedy is to move to bring forward the interpleader suit, dismissed on his motion without prejudice; but whether he should have another trial is a question to be determined at the trial term upon a hearing. It is unnecessary to consider the exception to the testimony of Leach and Parsons.

Exceptions overruled,

Allen and Blodgett, JJ., did not sit: the others concurred.