Glaser v. Medford-Marlboro Knit Gaiter Co., 93 N.H. 95, 99 (1944). Moreover, although not dispositive, the New Hampshire Supreme Court has opined that "[w]hether there is an agreement between the parties to share losses is an important . . . test" to determine whether a relationship constitutes a joint venture.Lefebvre v. Waldstein, 101 N.H 451, 455 (1958). Under the agreement between Johnson and Wyatt, Johnson assumed the exclusive responsibility to provide legal representation to Brault in pursuit of a Texas guardianship over Stacy, while Wyatt was to provide legal support services in connection with that proceeding.
Both of these relationships are assumed voluntarily, and thus whether or not either relationship has been created depends upon the intent of the parties. See Higgins v. Higgins, 125 N.H. 806, 809, 486 A.2d 294, 296 (1984) (citation omitted) (with a partnership, requisite intent may be express, either written or oral, or implied by the parties' actions); Lefebvre v. Waldstein, 101 N.H. 451, 455, 146 A.2d 270, 274 (1958) (intent determinative of creation of joint enterprise). Generally, the issue of intent is a question of fact and is best left to the trier of fact to determine.
[9-12] The first step in determining whether parol evidence is admissible is to consider whether the writing is a total integration and completely expresses the agreement of the parties. See Emery v. Caledonia Sand and Gravel Co., 117 N.H. 441, 445, 374 A.2d 929, 932 (1977) (quoting 3 CORBIN ON CONTRACTS 573, at 357 (1960)); Lefebvre v. Waldstein, 101 N.H. 451, 456, 146 A.2d 270, 275 (1958). Even when an integration clause is included in the writing, as in this case, this court will allow the admission of parol evidence to prove that the writing was not a total integration.
The damages resulting from the injunction, if proved, may properly be recovered under the bond. See Lefebvre v. Waldstein, 101 N.H. 451, 456-57, 146 A.2d 270, 275 (1958); Fowler v. Taylor, 99 N.H. 64, 65, 104 A.2d 746, 747 (1954). Remanded.
[3-5] We agree that an agent may bind a joint venturer to contracts, at least if the agent acts within the scope of his authority. Cf. Lefebvre v. Waldstein, 101 N.H. 451, 146 A.2d 270 (1958); 46 Am. Jur. 2d Joint Ventures 4 (1969). However, whether an agent has acted within his actual or apparent authority, and has thereby bound his principal, is a question for the trier of fact.
This is especially true, where as in this case, there is a dispute between the parties as to what was intended by the particular words used in describing Griswold's promise. Lefebvre v. Waldstein, 101 N.H. 451, 456; Rivier College v. St. Paul Fire Ins. Co., 104 N.H. 398, 402. There was evidence that the nature of the services rendered by Griswold to Heat from its origin in 1956 to December 2, 1963, the date of the agreement, were well known to both Griswold and Illig.
"In accordance with the modern tendency (9 Wig. Ev. (3d ed.) s. 2465) it has long been the rule here that the facts surrounding an undertaking including conversations in preliminary negotiations are admissible to aid in interpreting an agreement." Lefebvre v. Waldstein, 101 N.H. 451, 456; see also, Perry v. Company, 99 N.H. 451, 454; see Berke Co. v. Bridge Co., 98 N.H. 261, 266. The parol evidence was properly admitted, and therefore we overrule the defendant's exception to its admission.
White M't'n c. Co. v. Murphy, 78 N.H. 398, 403. No decision holding that a court will order a discharge of a mortgage the condition of which has not been performed so, as to enable the mortgagor to make a profit on an advantageous sale has been presented to us. Nor has any statutory law in our state granting such authority to the Trial Court been brought to our attention. Cf. RSA 511:48-50, 53. Williams v. Mathewson, 73 N.H. 242; Perry v. Company, 99 N.H. 451; Lefebvre v. Waldstein, 101 N.H. 451. Our answer to issue No. 2 is "no." The bill in equity for reformation not having been heard on the merits the order is
" All of the above findings being supported by the record are binding on this court (Lefebvre v. Waldstein, 101 N.H. 451, 455) and furnish a sufficient basis for a decree of specific performance. Dunlap v. Foss, 82 N.H. 449, 450.