Greenfield v. Kennett

• Decision Date: 17 March 1899
• Citation: 69 N.H. 419,45 A. 233
• Parties: GREENFIELD v. KENNETT.
• Court: New Hampshire Supreme Court

45 A. 233

69 N.H. 419

GREENFIELD

v. KENNETT.

Supreme Court of New Hampshire. Strafford.

March 17, 1899.

Action by John Greenfield against A. Crosky Kennett. Hearing on motion to set aside verdict for plaintiff. Verdict set aside.

Assumpsit for lumber sold, Trial by jury, and verdict for the plaintiff. The defendant read in evidence a letter from the plaintiff, but was not allowed to read a postscript to it, because the court found it contained an offer of compromise, and the defendant excepted. The plaintiff's counsel, in his closing argument, said that he "should be willing to try this case before a jury composed of parties with whom he [the defendant] had dealt." There was no evidence to support this statement. The defendant objecting, the plaintiff withdrew the remark, and asked the jury not to consider it. The court then and in his charge Instructed the jury to disregard the remark, but did not find that its effect upon their minds had been removed.

Worcester, Gafney & Snow, for plaintiff.

Edgerly & Mathews, for defendant.

YOUNG, J. An offer of compromise is not admissible against the party making it. Sanborn v. Neilson, 4 N. H. 501, 508; Pluinmer v. Currier, 52 N. H. 267, 296. When the statement of a party, offered in evidence, is claimed to be an offer of compromise, its admissibility raises the preliminary question whether it is such an offer; and this question may be decided by the trial judge, or, in his discretion, be submitted to the jury. Rartlett v. Hoyt, 33 N. H. 151; Field v. Tenney, 47 N. H. 513, 521. Being a question of fact, it is not reviewable here.

Whenever counsel, in his closing argument, goes outside the evidence for the purpose of prejudicing the jury, the verdict, if in favor of his client, will be set aside, unless the presiding justice finds that the jury were not influenced by the remarks, or that their effect upon the minds of the jury has been wholly removed. Bullard v. Railroad Co., 64 N. H. 27, 5 Atl. 838; Perkins v. Burley, 64 N. H. 524, 15 Atl. 21; Jordan v. Wallace, 67 N. H. 175, 32 Atl. 174. There was no evidence respecting the defendant's dealings with other parties, and the statement of the plaintiff's counsel to the effect that his dealings with them had usually been of such a character that they would be likely to look at this transaction in a light unfavorable for the defendant was not fair argument, but was an unsworn and irrelevant statement, unlawfully thrust into the case for the sole purpose of...