An offer of compromise is not admissible against the party making it. Sanborn v. Neilson, 4 N.H. 501, 507; Plummer v. Currier, 52 N.H. 287, 296. When the statement of a party, offered in evidence, is claimed to be an offer in 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. Bartlett 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, 64 N.H. 27; Perkins v. Burley, 64 N.H. 524; Jordan v. Wallace, 67 N.H. 175. There was no evidence respecting the defendant's dealings with other parties; *Page 420 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 prejudicing the jury against the defendant; and since it is not found that this remark did not have its natural effect upon the minds of the jury, the order must be
Verdict set aside.
WALLACE, J., did not sit: the others concurred.