Opinion
Decided April 2, 1907.
The fact that a litigant's failure to act was due to a mistake of his counsel warrants a finding that he was prevented by accident, mistake, or misfortune.
MOTION, by the plaintiff, to be relieved from the agreement on which this case was submitted when it was previously before the court ( 73 N.H. 222, 391). Hearing before Stone, J., by whom the case was transferred from the November term, 1906, of the superior court.
Although both the plaintiff and his counsel knew of the facts which they say show that "the parties understood that the plaintiff's performance of the contract was accepted from dry to day as the work progressed," the plaintiff acted by advice of counsel, and neither of them knew, or ought to have known, that those facts were material to a recovery. Subject to the defendant's exception, the court ordered that the plaintiff be relieved from the agreement.
George B. Cox and Walter S. Peaslee, for the plaintiff.
Jewett Plummer, for the defendant.
It can be found from the fact that a person fails to act because of a mistake of his counsel, that he was prevented from acting by accident, mistake, or misfortune (Grout v. Cole, 57 N.H. 547; Bolles v. Dalton, 59 N.H. 479; 480; Kelsea v. Manchester, 64 N.H. 570; Harvey v. Northwood, 65 N.H. 117; Cossar v. Truesdale, 69 N.H. 490; Parsons v. Durham, 70 N.H. 44; Gunnison v. Abbott, 73 N.H. 590, 592); so there was evidence to sustain the court's finding, which is the only question of law raised by the defendant's exception.
Exception overruled.
All concurred.