Brooks v. New Durham

55 N.H. 559, 1875 N.H. LEXIS 128

• Court: Supreme Court of New Hampshire
• Decided: August 12, 1875
• Status: Published

Opinions

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.