Blain v. Patterson , 47 N.H. 523 ( 1867 )

Bellows, J.

The agreement having become matter of record in this court, is binding upon the parties, and will be specifically enforced, so far as the nature of the case will admit. In Alton v. Gilmanton, 2 N. H. 320, which was assumpsit for the support of a pauper, an agreement made and filed, as in this case, to waive all objections to the notice and service of it, was held to be conclusive as to the validity of the notice, the court saying that the agreement is to be considered as a portion of the materials from which the record is to be made up, and that the court would not allow the parties to depart from it, unless on evidence that it was made by mistake, fraud, or surprise. Goodrich v. Eastern Railroad, 38 N. H. 390; see Burbank v. F. I. Co., 24 N. H. 561. The principle, however, is too well established to need the citation of authorities.

The agreement in the case at bar, was evidently designed to provide for the settlement of the controversy between the parties, and upon the performance of the stipulations on the part of the defendant, the action was to be dismissed. By this agreement certain articles sued for and enumerated were to be retained by the defendant for his mother, and certain others for the plaintiff’s wife, and the rest of the articles sued for were to be delivered to the plaintiff on demand, and such as defendant did not so deliver, he was to pay for to plaintiff.

This agreement, in the absence of fraud or mistake, conclusively establishes the plaintiff’s right to the articles stipulated to be delivered to him, or to their value if not delivered on proper demand. If not delivered on such demand, the obligation to pay the value is clear, and arising from matter of record the court has power to enforce the obligation specifically. In Coburn & al. v. Whateley, 8 Met. 274, the court, Shaw, C. J., holds that agreements made in court and entered upon the docket, will be enforced. He says the court, by its general superintending power over all proceedings before it, will take notice of them, and act upon them in such way as to carry them specifically into effect.

Ordinarily, such agreements are made in reference to pending suits, and with a view to expedite the trial of them, or to determine the judgment to be rendered; and generally they may be enforced, either by giving them full effect in the trial, or other disposition of the cause, or in making up the judgment; and in appropriate cases the agreemen will be enforced by attachment, as held in Fernald v. Ladd, 4 N. H. 370. And we think this mode of enforcing the agreement in this case might properly be resorted to if other means of doing it specifically were wanting.

Upon its being made to appear that due demand has been made, and the articles not delivered, the obligation to pay the value of them is unquestionable, and upon ascertaining the facts of the demand and refusal, together with the value of the articles not delivered, the court might, we think, enforce the payment by attachment. Here, the demand, and refusal, and value, have been ascertained by the report of an auditor, and if properly made, we see no impropriety in acting upon, and in some form enforcing, the payment of the amount.

It is urged by the defendant that the evidence reported by the auditor does not show a valid demand, inasmuch as no list of the articles not delivered, with the prices of them, was presented by the plaintiff to the defendant at the making of the demand. We think, however, that this was unnecessary. The knowledge of the plaintiff upon the subject was no greater than the defendant’s. The articles sued for were stated in the writ, that had become matter of record, and the parties had equal access to it. The defendant knew what he had delivered, and had the same means of ascertaining the rest as the plaintiff possessed, and therefore could not require the information of the plaintiff. In respect to the value, also, the plaintiff was in the same situation as the defendant, who was to pay the value of the goods, not according to the plaintiff’s estimate, but what they were actually worth. The defendant, however, denied that he had any more, and refused to deliver any more, and it does not appear that he offered to pay for those he did not deliver. Had he manifested a willingness to pay, but had been prevented by being unable to fix the prices, it would have presented a different case, at least, in view of the propriety of enforcing the agreement by attachment.

The defendant also offered to prove that many of the articles sued for were never received by him, but the evidence was rejected by the auditor, and, we think, rightly, for the agreement, as before stated, was conclusive upon that point, there being no evidence that it was entered into by mistake or fraud.

The defendant also objects to the exclusion of his wife as a witness, but upon the authority of Kelley v. Proctor, 41 N. H. 139, Smith v. Railroad, 44 N. H. 325, and Young v. Gilman, 46 N. H. 484, the decision of the auditor was clearly right. We have, then, a case where the defendant is bound by matter of record to pay the plaintiff the value of certain goods, and the costs of the suit; and the value of those goods have been properly determined, and we have no doubt that the court can enforce the payment without compelling the plaintiff to resort to another suit upon the agreement in question.

By making this agreement a matter of record in this suit, it must be understood that the parties contemplated the enforcement of it specifically and by means of this suit. The agreement was evidently designed to provide for a full settlement of the controversy, by allowing the defendant to retain a part of the goods for certain purposes, to return another part to the plaintiff', and pay him the value of the rest, with the costs of the suit. All has been executed but the payment of the money and the costs, and although there was no express agreement that judgment should be rendered for the value of the goods, we think that is fairly to be inferred ; and upon the whole, we can see no objection to that course. It will accomplish the precise object of the agreement and nothing more, and upon the whole seems the most appropriate way of giving effect to the agreement.

It might be said, indeed, that the agreement to pay the value of the goods conclusively admits the plaintiff’s cause of action to that extent, as much as the payment of money into court, which, as it is well settled, has that effect. 1 Greenl. Ev. sec. 205.

Beeston v. Bikker, 5 H. & N. Exch. 253, was an action of ejectment, and on the trial there was a verdict for the plaintiff, and the defendant being about to move for a new trial, it was agreed that a verdict and judgment in an action of trespass between the same parties, then in order for trial, should determine the verdict and judgment in the ejectment, and that it should not be necessary to apply to set aside the verdict in that suit. The action of trespass resulted in an order by consent that a juror be withdrawn, possession given to A. C., and no costs ; but plaintiff, notwithstanding, entered up judgment on the verdict in the ejectment. The decision of the court was, that this was irregular, for the burden of the agreement was that the decision in the other case should decide the ejectment, and that the effect of withdrawing a juror and agreeing there should be no costs, was, that the proceedings in the ejectment were at an end. Here, the court carried into effect the evident intention of the parties that the ejectment should abide the disposition of the other suit, although in terms it was that the verdict and judgment should determine it.

With these views, we are satisfied that there should be judgment for the amount found by the auditor, and costs.

Judgment for plaintiff.