Wyman v. Perkins

39 N.H. 218

Opinion

Doe, J.

*

The alleged breach of the defendant’s contract was in not sawing lumber for the plaintiff. The witness McAlpin testified that he drew some logs to the defendant’s mill, to be sawed on the plaintiff’s account, and that the defendant’s agent refused to saw them on the plaintiff’s account, but sawed them for McAlpin, who paid for the sawing at the time, and took a receipt therefor. The agent’s declarations that he would not saw the logs for the plaintiff, were admissible as evidence of a breach of tbe contract by tbe defendant, and tbe receipt was admissible on the same ground. Notwithstanding the refusal of the agent in the outset to saw the logs on the plaintiff’s account, if, after he had sawed them, he had cancelled the charge made against MeAlpin, had agreed with him that the sawing should be considered as done for the plaintiff, and had allowed the clapboards to be taken away without payment for the sawing, the parties might well have considered the contract as not broken by that transaction. The receipt was substantially a declaration of the agent that the payment was made by MeAl-pin on his own account, and that the refusal by the agent, in the first instance, to saw for the plaintiff was still persisted in. The payment by MeAlpin, and the receiving payment by the agent, were relevant and material, and the verbal or written declarations of MeAlpin or the agent, made at the time, having a tendency to elucidate or give character to those acts, and which might derive a degree of credit from them, were admissible. "Whether the jury should have considered the date of the receipt as evidence of the time of the transaction, cannot now be considered, as the objection to the admission of the receipt was general, and no instructions were requested upon that point. The only question now is, whether it was admissible for any purpose.

Tbe magistrate’s certificate of the cause of taking the deposition of Mary Merrill was not conclusive. The statute could not have been intended to give the magistrate power to decide finally, without appeal, upon the truth of the cause alleged by the party taking a deposition. It would be unreasonable that parties, taking depositions to be used in this court, should have the cause of taking determined by another tribunal of their own selection. It is going far enough to hold that the certificate of the magistrate that the deponent lived more than ten miles from the place of trial, was 'primd facie evidence of a good cause for taking the deposition. The deposition was properly rejected.

The case of Whittemore v. Whittemore, 2 N. H. 26, has been cited as an authority against the correctness of the instructions given to the jury. It was decided in that case, that in assumpsit on account annexed, where the defendant pleaded in bar that the parties, after the date of the charges in the account annexed, agreed by bond to submit all demands to the arbiti’ament of certain referees, who, previous to the commencement of the action, had awarded upon the premises, a replication that the charges in the account annexed were not laid before the referees, nor embraced in their award, was good. The decision was put wholly upon the ground that the demand in suit was not to be necessarily and conclusively presumed to have passed, by force of the award, in rem judicatam. It was said if the agreement to refer were broken by a neglect or refusal to submit any or all of the demands, an action would lie on the agreement for such damage as might be sustained by the breach. But whether the plea would not have been an unavoidable bar, if it bad further alleged that the plaintiff had designedly and fraudulently withheld from the submission, the demand in suit, and had intentionally, and by false representations, induced the defendant to believe, and to perform the award in the belief, that all demands had been submitted — or whether the defendant might not, in some way, avail himself of such a defence to defeat fraud and avoid circuity of action, was a question not considered "in that ease. "We think that such a defence is good as an estoppel, and that the instructions given to the jury were sufficiently favorable to the plaintiff. Page v. Foster, 7 N. H. 392.

Judgment on the verdict.

Bellows, J., did not sit.