At the January term, 1875, the defendants were not ready for trial, and had no sufficient cause for a continuance. In this extremity they moved a reference of the case, and, as a condition of granting that motion, their agreement to waive a trial by jury was entered upon the docket, and made part of the record. Having received all the advantage coming to them from a performance of the contract, they now ask that it be annulled just at the point when the plaintiff may begin to enjoy its fruits. I do not think this claim can be allowed; nor do I see how the change of referees, or the order of April term, 1875, or the delay in obtaining a hearing, changes the aspect of the matter at all, unless it be to increase the plaintiff's equitable claims.
SMITH, J. The reference and continuance were granted upon the application of the defendants, upon the condition that they would waive a trial by jury. That a party may waive a jury trial is well settled; and it may be done by his agreement, or by his acts. King v. Hutchins, 26 N.H. 139. No reason has been suggested why the defendants should not be held to the performance of the agreement made by them in court; and I agree that the plaintiff is entitled to judgment on the report.
Exceptions overruled.