An examination of this case shows that by the agreement of the parties the only question to be passed upon by the referees was the amount of the plaintiff's loss by fire under the policy of insurance issued to him by the defendants, and that in consideration of the plaintiff's assent to the agreement, the defendants waived all defences going to the maintenance of the action.
The purpose to be accomplished being a legitimate and proper one, and there being no proof that the agreement is not what the parties mutually intended to make it, or that it was entered into by the defendants through fraud, accident, or mistake, no grounds of relief are presented (Page v. Brewsters, 54 N.H. 184, 187, 188); nor is any question of law raised by the exception of the defendants to the denial of their motions, (1) to be relieved from their agreement by the court, and, failing in this, (2) that the report be recommitted for the purpose of making such application to the referees. Motions of this character, the decision of which requires the hearing and weighing of evidence, are for the trial term; and when they are considered and decided there they will not be reconsidered here.
No legal objection appears to the validity of the award. The referees having no authority to find or determine anything but the amount of the plaintiff's actual loss, time need not be spent in discussing the obvious correctness of their ruling, that the plaintiff was entitled to recover as damages only the $500 advanced to him by Wiggin, or in considering their failure, to find and report the facts as to the plaintiff's alleged fraudulent overvaluation of his property. If, however, these facts had been found and reported, and proved all that the defendants claim for them, they would be immaterial as matter of law, and could not be permitted to avail the defendants, under the agreement, because their only possible effect would be to defeat the action entirely by avoiding the policy for fraud in the proofs of loss, and thus unjustly give the defendants the benefit of a defence which they had not only expressly waived, but one also of which they were fully cognizant at the time the reference was agreed upon, as distinctly appears by their affidavit for a continuance of the case filed at a previous trial term of this court, and which is now a part of its records.
The plaintiff is entitled to judgment for the amount of his loss as reported by the referees.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred. *Page 113