Albee v. Hayden

Cornell, J. This is an appeal from a judgment entered upon the decision and order of the court before whom the action was tried without a jury, containing a special finding •of facts, together with the conclusions of law therefrom. There is no ease containing any statement of evidence, and hence no question can arise concerning the sufficiency of the evidence to support the findings. The conclusions of law are clearly justified by the findings of fact, and the judgment is in accordance therewith. Whether, under the general authority belonging to an attorney of record •of a party to an action to act for his client in reference to the matters in controversy therein, it was competent in this instance for Kerr & Collins, as such attorneys, to make and enter into the stipulation mentioned in the findings, and to bind their client, Hayden, to the agreement therein contained, need not be considered, for, upon the findings, based as it must be assumed upon sufficient competent evidence, it expressly appears that said stipulation and agreement were made, .signed and entered into on the part of said Hayden with full knowledge on his part of their contents and purport; that he was present with his said attorneys at the time said agreement and stipulation were made, and had full knowledge of .and directed the terms of the settlement, which, as stated in the stipulation, were expressly agreed upon and expressly consented to by him at the time; and that he then and there [272] expressly authorized and directed his said attorneys, Kerr &- Collins, to make and sign the same for and on his behalf, which they then did, pursuant to such their said special authority- and instructions, and in his presence. Under these circumstances, the defendant was bound by the stipulation and its provisions. The agreement “to permit the maintenance of the dam at the height” therein specified included and gave-the right of flowage upon Hayden’s land, to the extent necessarily occasioned by its maintenance at that height. The finding that “plaintiffs had duly performed all the conditions precedent on their part, agreed by them in their said agreement and stipulation to be done and performed,” fully disposes of the last point made by defendant in reference to ■ the failure of the plaintiffs in this regard. According to our construction of the written stipulation, Hayden, upon the payment of the $600, undertook to acknowledge full satisfaction of the verdict in the action then pending on appeal in the supreme court, or any judgment rendered thereon, without costs to the defendants in said action. Judgment affirmed.