If an action in which the parties had a constitutional right to trial by jury was by their agreement marked for trial by the court, the agreement and marking remain in force after a trial by the court which does not result in a decision, and will not be vacated except for cause shown[.]
CHASE, J.
The agreement binds the parties, and, like other agreements made matter of record, should be specifically enforced, unless it appears that it ought to be vacated for good cause. Alton v. Gilmanton, 2 N.H. 520; Fernald v. Ladd, 4 N.H. 370; Dexter v. Young, 40 N.H. 130; Blain v. Patterson, 47 N.H. 523, 526; Wells v. Jackson Iron Company, 48 N.H. 491, 526; Page v. Brewsters, 54 N.H. 184; Brooks v. New Durham, 55 N.H. 559, 561; Vaughan v. Morrison, 55 N.H. 580, 592; Weare v. Putnam, 56 N.H. 49; Woodbury v. Swan, 59 N.H. 515; Russell v. Babbitt, 60 N.H. 373. Whether it should be vacated is a question of fact to be determined at the trial term. By the agreement, the plaintiff waived her right of trial by jury. The waiver continues while the agreement is in force. There is no provision in the agreement by which the case is to be tried by a particular member of the court, or at a particular term, or by a jury at subsequent trials if the first does not result in a verdict. Its terms are general, and include all trials that are necessary to reach a decision of the issues.
Case discharged.
CLARK, J., did not sit: the others concurred.