The evidence warrants the findings that Blais' claim should have been settled and that it might have been settled before suit was brought without calling on the plaintiffs for contribution. The defendant, however, made no serious attempt to settle with Blais until matters were in such shape there was nothing else to do, when the case was settled for $6000. The question, therefore, raised by the defendant's first exception is whether it owed the plaintiffs the duty of settling with Blais before suit, if that was the reasonable thing to do. As to that there can be no question; for when the defendant assumed control of the Blais claim, it then and there became its duty to do what the average man would do in a similar situation.
The defendant rests its contention as to its second exception on Batchelder v. Railway, 72 N.H. 329. The conclusion reached in that case rests on the proposition that if counsel persist in disobeying a ruling of the presiding justice, the court will set aside a verdict in his favor as punishment for his intentional misconduct. In this case, however, it is not found and there is no evidence to warrant a finding that counsel either knew or ought to have known that he was disobeying the law of the trial when he made the remarks in question.
Exceptions overruled.
PLUMMER, J., was absent: the others concurred.