Opinion
No. 4632.
Argued September 3, 1958.
Decided October 7, 1958.
1. The resolving of a conflict of testimony on the issue of whether a binding agreement for settlement of litigation had been made between opposing counsel was within the province of the Trial Court and its determination of the issue supported by the evidence was sustained.
ASSUMPSIT, brought by the plaintiff administratrix Anna K. Dolph, against the defendant, Marie E. Hager, to recover money claimed to be due the estate of Katherine Riekert. The writ alleged that during the decedent's lifetime certain sums were withdrawn from two savings accounts in her name and deposited in accounts in the names of the defendant and the plaintiff individually, as joint tenants; and that although title remained in the decedent, the defendant had refused to surrender the accounts to the plaintiff. Subsequently, a bill in equity alleging the same facts was brought by the plaintiff, which bill was dismissed without prejudice. The defendant's attorney alleged that both actions were settled with James A. Pierce, formerly plaintiff's attorney, who withdrew from the case prior to the present proceedings. The defendant filed a motion to enforce the settlement which, after hearing, the Court denied. The defendant's exception to this dismissal is the sole question transferred. Further facts appear in the opinion. Reserved and transferred by Wheeler, C. J.
Burns, Calderwood, Bryant Hinchey (Mr. Hinchey orally), for the plaintiff.
Fisher, Parsons Moran (Mr. Moran orally), for the defendant.
The issue before the Trial Court was whether a binding agreement for settlement had been made between the parties. The record discloses that the defendant's attorney testified that an agreement had been reached, which opposing counsel and his client unequivocally denied. The defendant's attorney stresses the fact that he wrote plaintiff's counsel a letter "in confirmation" of the alleged agreement, setting forth its terms, to which he received no written reply. While this evidence was entitled to consideration, it was by no means conclusive in the face of the record as a whole, especially in view of plaintiff's counsel's statement that "within two or three days" of the receipt of this letter he telephoned defendant's attorney and told him no agreement had been made. The sharp conflict in testimony was plainly for the Court to resolve. Clover c. Co. v. Smith Co., 96 N.H. 491, 493. Since the evidence supported the result reached the order is
Exception overruled.
WHEELER, J., did not sit; the others concurred.