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(108 A.)

(79 N. H. 295) tions overruled, and judgment rendered on GEORGE W. BLANCHARD & SON CO. v. the verdict.

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Assumpsit to recover an installment of $25,000 under the terms of a logging contract. Trial by jury, and verdict for the plaintiff. The plaintiff obtained an amendment of the declaration, in which a written contract was set out, by which it appeared that on October 31, 1916, the plaintiff sold to the defendant all the spruce and fir timber upon certain lands of the plaintiff for the sum of $100,000, payable in equal annual installments of $25,000 on the 1st day of April in each of the years of 1917, 1918, 1919, and 1920. It was alleged that the second installment was not paid when it became due, although payment of it was demanded by the plaintiff. The defendant excepted to certain parts of the charge and to the refusal of the

2. ACTION 65-CAUSE OF ACTION ACCRUING court to give certain requested instructions,

AFTER SUIT BROUGHT.

In an action to recover an installment due under logging contract, the fact that defendant after the trial announced that it had repudiated the contract as a whole will not, where plaintiff at the time suit was brought assumed that defendant would continue to cut timber and was in default only as to the installment, limit plaintiff to recovery of damages for breach of the contract as a whole, which damages defendant asserted were less than the installment due.

3. PLEADING 252(1)

MENT TO DECLARATION.

EFFECT OF AMEND

An amendment to a declaration relates back to the date of the writ.

4. LOGS AND LOGGING 3(13)-STIPULATED INSTALLMENTS ON TIMBER CONTRACT NOT REDUCED BY FAILURE TO CUT FULL AMOUNT OF

TIMBER.

In an action for an installment due for timber sold, where the contract expressly provided for payment of such installment, though logs to a less extent than contemplated were cut, defendant cannot diminish recovery by showing that it had not cut the amount of timber contemplated.

5. Appeal and erROR 843(2)-DETERMINA

TION OF QUESTIONS NOT INVOLved.

Where plaintiff sued to recover installment due on logging contract, and action was tried on that theory, appellate court will not determine what measure of damages, if any, would be applicable to subsequent action by plaintiff for defendant's entire repudiation of contract, notwithstanding defendant asserted that it had repudiated contract before action for installment, and so there could be no recovery thereof.

Transferred from Superior Court, Coos County; Marble, Judge.

Assumpsit by the George W. Blanchard & Son Company against the American Realty Company. There was a verdict for defendant, and plaintiff excepted; the cause being transferred from the superior court. Excep

which, together with other facts, are stated in the opinion.

Sullivan & Daley, of Berlin, for plaintiff. Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendant.

the

WALKER, J. The case was tried under the amended declaration. The original counts were stricken out, and new counts were substituted therefor, in which plaintiff sought to recover the second installment of $25,000, which, under the contract, was due and payable at the date of the writ. The breach alleged was the failure of the defendant to make that payment upon demand; and the verdict establishes the fact upon competent evidence that the defendant committed a breach of the contract in the respect alleged.

[1] The issues raised by the defendant's plea were: (1) That the person who executed the contract in its name had no authority to make the same; and (2) that the contract, if binding on the defendant, was induced by fraudulent representations of the plaintiff in regard to the quantity of lumber on the designated lots. The defendant now concedes that the evidence justified the jury in finding for the plaintiff on these issues, but claims that the court erred in its charge to the jury, that if the issues above stated were found for the plaintiff the defendant is liable for the installment sued for. The defendant's argument in support of this claim is that it had repudiated the entire contract, and had notified the plaintiff before the suit was brought that it would not be bound by the contract, and that if the plaintiff is entitled to recover damages for its breach of the contract the proper measure of the damages is the difference between the value of the timber left standing and the contract price remaining unpaid, and not the installment of $25,000 which, according to one pro

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

vision of the contract, was apparently due [ damages not applicable to the cause of action when the suit was begun.

If it is assumed that this might be the true rule of damages under the facts suggested (a point upon which no opinion is expressed), the difficulty with the argument is that under the instructions of the court the jury has found that the plaintiff did not know when the suit was brought that the defendant had repudiated the contract. This finding was based upon evidence which, though somewhat conflicting, justified the jury in reaching that conclusion. The defendant does not claim that the evidence was insufficient, but it insists that in the original declaration there is an unequivocal admission by the plaintiff that it knew when the writ was drawn that the defendant refused to be bound by the contract as a whole. In the statement referred to it is said that

"On said April 1, 1918, the plaintiff demanded of the defendant the payment of said $25,000 then due under said written agreement, but the defendant refused to be further bound by or carry out its part of said written agreement, or receive and pay for any more of said spruce and fir timber."

But this is a mere allegation in the formal statement of the plaintiff's cause of action, which does not amount to an admission available as conclusive evidence against the plaintiff of its truth, especially after the allowance of an amendment by the substitution of a new declaration containing no such statement. In Kimball v. Bellows, 13 N. H. 58, it was held that where several counts were originally in the plaintiff's declaration, and on a new trial being granted a portion of the same were struck out and new ones inserted, it was incompetent for the defendant on a second trial to offer the original counts as an admission of the party to contradict the grounds of suit alleged in the new counts. This principle has been recognized and applied in numerous cases in this state. Pittsfield v. Barnstead, 38 N. H. 115, 121; Hall v. Clement, 41 N. H. 166, 168; Bartlett v. Prescott, 41 N. H. 493, 499; Larry v. Herrick, 58 N. H. 40; Solomons v. Chesley, 58 N. H. 235. The defendant's contention upon this point cannot be sustained.

sued upon and not existing when the suit
was brought.
was brought. The defendant's declaration,
first made during the trial, of its renuncia-
tion of the entire contract and of a more com-
prehensive breach than the plaintiff alleged,
did not defeat the plaintiff's action, or de-
prive it of the damages it was entitled to at
the date of its writ. If before the second in-
stallment became due the plaintiff had known
the defendant sought to repudiate the con-
tract as a whole, the defendant's argument
upon the question of damages would have
been more appropriate, based as it is upon the
assumption that the damages for its admitted
breach would be less than the amount of one
installment. But as the plaintiff, when the
suit was brought, or when the amendment
was made which related back to the date
of the writ (Whittier v. Varney, 10 N. H.
291, 303; State v. Collins, 68 N. H. 46, 36 Atl.
550; State v. Lynch, 72 N. H. 185, 55 Atl.
553), properly assumed that the defendant
would continue to cut the timber, and was
only in default in regard to the second pay-
ment, the defendant's claim is illogical and
untenable as a matter of law. The jury were
properly instructed that, if they found the
defendant was liable, they should return a
verdict for $25,000, as stipulated in the con-
tract.

[4] The defendant's suggestion that in any event the recoverable damages would be, not the amount agreed to in the contract as due and payable on April 1, 1918, but the fair value of the timber cut, is entitled to little consideration. The court cannot relieve the defendant in this action from the payment of the specific amount it agreed to pay for the privilege of cutting timber on the plaintiff's land, or substitute a rule of damages in conflict with its express agreement, in the absence of any finding of fraud, mistake, failure of consideration, or other valid grounds for relief. Moreover, while the parties contemplated that about 10,000 cords would be cut each year, it was expressly agreed that, if less than that amount should be cut in any year, "payment shall be made of $25,000 each year, beginning April 1, 1917." This provision shows that the payment of the installments was in no way limited by the quantity of timber cut, which for the two years the defendant operated was less than 10,000 cords. It is also significant that the defendant paid the first installment in full on that date, although it had then cut much less than 10,000 cords. "It is familiar law that no recovery can be The plaintiff having fully performed its conhad upon a cause of action that arises after tractual duties, the defendant's liability for the suit was brought." Ackerman v. Middleby, the payment of the amount of the install75 N. H. 576, 577, 78 Atl. 615, Tappan v. Tap-ment, without regard to the amount of timpan, 30 N. H. 50; Child v. Powder Works, 44 N. H. 354; Thompson v. Steam Mill Co., 62 N.

[2, 3] Nor did the defendant's assertion, during the trial, that it renounced all its obligations under the contract and refused to cut any more timber from the plaintiff's land, affect the plaintiff's cause of action as it existed at the date of the writ, for

H. 303.

It was therefore no error for the court to

ber it has cut, is clearly established by the unequivocal terms of the contract. Rideout v. Woods, 30 N. H. 375, 377. It has not been deprived of any of the rights it had under

(108 A.)

has not been revoked by the plaintiff, who, I fendant was negligent held warranted; defendso far as appears, is without fault in any re- ant's evidence that there were six bright lanspect. Lamprey v. Eastman, 68 N. H. 198, terns being substantially an admission that 34 Atl. 741. more than two dim lights were needed. 6. MASTER AND SERVANT 289 (19) CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), by a trackman injured while loading timbers of varying lengths on cars at night with dim lights, whether plaintiff was guilty of contributory negligence held for the jury.

[5] What principle of damages should be applied in another suit, based upon the refusal of the defendant to be further bound by the contract, is a question it is unnecessary to consider at this time, because it is not properly before us, and because, if there should be further litigation, as is suggested, it does not seem advisable to anticipate the facts that may then be presented, and to state our present views, which would be mere dicta.

7. MASTER AND SERVANT 288(5)-ASSUMP-
TION OF RISK QUESTION FOR JURY.
Whether a railroad trackman called out

Exceptions overruled; judgment on the at night to repair a washout, and directed to

verdict.

All concurred.

(79 N. H. 276)

CRUGLEY v. GRAND TRUNK RY. CO. (No. 1587.)

(Supreme Court of New Hampshire. Oct. 7, 1919.)

1. COURTS 97(5)—CONSTRUCTION OF

ERAL STATUTES FOR FEDERAL COURT.

help load cars with timbers, assumed the risk of working without proper lights, held for the jury.

8. DEATH 76-EVIDENCE AS TO CAUSE OF DEATH.

Where an injured servant, who sued for damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), died, Coos. and his administratrix asked damages for his death, the fact that there was no evidence that defeat the action, going only to the measure of the death was caused by the accident did not damages.

FED

The interpretation of federal statutes rests

with the federal courts.

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3. MASTER AND SERVANT 265(13)-FEDERAL EMPLOYERS' LIABILITY ACT; BURDEN OF

PROOF ON ISSUE OF ASSUMPTION OF RISK.

In an action in the state court, based on the federal Employers' Liability Act (U. S.

Comp. St. §§ 8657-8665), the burden of proof
upon the issue of assumption of risk is upon
the defendant.
4. TRIAL

205-INSTRUCTIONS AS TO BURDEN OF PROOF UNDER FEDERAL EMPLOYERS' LIABILITY ACT.

In an action in the state court, based on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), juries should be instructed that, upon the issues of contributory negligence and assumption of risk, the burden is on the defendant.

5. MASTER AND SERVANT 278(3)-FINDING OF NEGLIGENCE WARRANTED.

Transferred from Superior Court, Coos County; Marble, Judge.

Action by Anna Crugley, administratrix, against the Grand Trunk Railway Company. Verdict for plaintiff, and cause transferred on defendant's exceptions. New trial.

Case, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), to recover for injuries sustained by John Crugley. Trial by jury and verdict for the defendant. The suit was brought by Crugley in his lifetime and prosecuted by his administratrix after his death. He was employed by the defendant as a trackman, and on the night of June 18, 1917, he, with others, was called to repair a washout at North Yarmouth, Me. The men went from Berlin to Gorham, N. H., on a work train and there loaded some timbers. These were about 18 inches square and so long that they were loaded upon two flat in places there would be an open space becars. They were of unequal lengths, so that side one timber and at the end of the next. The men loaded the timbers with cant-dogs, with the use of which Crugley was not familiar. While they were so employed, a timber swung back at Crugley's end, forcing him to step backward. As he did so, he fell into

In an action under the federal Employers' the open space described and was injured. Liability Act (U. S. Comp. St. §§ 8657-8665), The plaintiff's evidence was that there were for injuries to a trackman, where plaintiff's but two dim, dirty lights on the job. The dewitnesses testified that there were but two fendant's witnesses testified that there were dim lanterns furnished for the job of loading six bright lights. The defendant's motion for timbers on cars at night, a finding that de- a directed verdict was denied subject to ex

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ception. The plaintiff excepted to remarks (That there was no evidence of the defendof the defendant's counsel in argument, and ant's negligence, that the risk was assumed, to an instruction to the jury that the burden and that there was no evidence that the acof proof was upon her upon all issues except cident caused Crugley's death. contributory negligence.

Ovide J. Coulombe, of Berlin, for plaintiff.
George F. Rich, of Berlin, for defendant.

[5] The plaintiff's witnesses testified that there were but two lanterns on the job and that those were dirty and burned dimly. The defendant's evidence was that there were six lanterns, all burning brightly. This evidence was substantially an admission by the defendant that more than two dim lights were needed. If the jury believed the plaintiff's witnesses, they might find that the negligence complained of was proved.

[6] While plaintiff's decedent knew of the darkness of the night and the dimness of the light, it does not appear that he knew or appreciated the fact that the timbers were

PEASLEE, J. [1] One question tried was whether the plaintiff's decedent assumed the risk of the danger alleged as the cause of injury. The jury were instructed that the plaintiff had the burden of proof upon all issues except contributory negligence. The action being brought under the federal Employers' Liability Act (35 U. S. Stat. 65), the question presented is whether the local rule which was given is applicable to suits under of varying lengths or that for this or other the statute. The rule in the United States courts is that the defendant has the burden of proving assumption of risk. Seaboard Air Line Ry. v. Moore, 228 U. S. 433, 33 Sup. Ct. 580, 57 L. Ed. 907. Whether this rule should be followed in all suits brought under, the act depends upon the interpretation put upon the statute. It is a question of the legislative intent embodied in the act, and the interpretation of the statute rests with the federal court. Southern Ry. v. Gray, 241 U. S. 333, 36 Sup. Ct. 558, 60 L. Ed. 1030.

[2] In Central Vermont R. R. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, it was held that the rule as to burden of proof upon the issue of contributory negligence is not a mere matter of procedure, but of substantive law; that Congress presumably enacted the federal Employers' Liability Act with the intent that the federal rule on this subject should apply; and that therefore it does apply, although the suit be brought in a state court in a jurisdiction where the local rule is different.

[3, 4] In view of this decision, and of the federal rule that the burden of proof upon the issue of assumption of risk is upon the defendant, there is no reasonable doubt that the construction of the statute as to contributory negligence will be followed as to assumption of risk. New Orleans, etc., Co. v. Harris, 247 U. S. 367, 372, 38 Sup. Ct. 535, 62 L. Ed. 1167. The federal interpretation of the statute has progressed sufficiently to indicate the rule to be applied at trials. In suits brought under this act, juries should be instructed that upon the issues of contributory negligence and assumption of risk the burden is on the defendant. It was therefore error to charge that the plaintiff had the burden upon assumption of risk, and for this reason the verdict must be set aside.

But it is urged that this error is immaterial because the defendant's motion for a directed verdict should have been granted.

reasons there was likely to be such an irregularity of the line of safe traveling space. While it may be said that he was fully informed of the lack of light, it could also be found that he did not know, and he was not as matter of law bound to know, that the darkness concealed the danger from which he suffered.

[7] More than this, it could be found that he had no reasonable opportunity to quit the work after he knew what he did of the situation. He was working on an emergency job. The men had been called out in the night to get materials to repair a washout and were loading the cars with the timber to be used for that purpose. Reasonable men might well find that a workman so employed did not assume risks which were first known to him when the work was in progress. Castonis v. Railroad, 78 N. H. 348, 100 Atl. 601. Reasonable opportunity to quit the service was lacking, or at least such might be found to be the fact. Northern Pac. R. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321, 31 L. Ed. 296; Chesapeake & Ohio Ry. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016.

[8] The third ground for the motion is that there was no evidence to show that the accident caused Crugley's death. If this is well taken, it goes only to the measure of damages and does not defeat the action. The suit was brought by Crugley, in his lifetime, to recover for other injuries. An examination of the evidence indicates that there was no proof that the accident was the cause of death; but as there must be a new trial, and as the surgeon who first operated on Crugley may then have returned from army service and be available as a witness, it is not necessary to now decide this question.

Nor is there occasion to consider the exceptions to the argument of defendant's counsel, since the verdict must be set aside in any event.

New trial.

(108 A.)

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Where there was evidence to show that notes sued on were obtained by fraud, plaintiff, a subsequent holder, has the burden of proving that it was a bona fide holder for value.

2. BILLS AND NOTES 537(6)—WHETHER PLAINTIFF WAS BONA FIDE HOLDER IS QUESTION FOR JURY.

Where on the evidence a reasonable man might think plaintiff's good faith in purchasing notes obtained by fraud was not shown, defendant in an action on such notes is entitled to have the issue submitted to the jury.

3. BILLS AND NOTES 497(5)-BURDEN OF PROOF AS TO BONA FIDES OF HOLDER OF FRAUDULENT NOTE.

Negotiable Instruments Act, §§ 52, 59, did not change the common-law rule that, where there is evidence that notes were obtained by fraud, the holder must show that he was a bona fide holder.

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PLAINTIFF WAS BONA FIDE HOLDER OF NOTES
FOR JURY.

In an action on notes, where there was evidence that they were obtained through fraud, the question whether plaintiff was a bona fide holder held, under the evidence, for the jury.

5. TRIAL 142-INFERENCES FROM EVIDENCE FOR JURY.

to enter into the contract by means of forged letters of recommendation of the company

The plaintiff's cashier testified that he first did business with the company June 6, 1919, when Mr. G. H. Partin was introduced to him. Partin brought letters of recommendation from other banks and the plaintiff bought of the company some $4,000 or $5,000 of notes, at a discount of 10 per cent. On July 26th the plaintiff bought $6,100 of paper from the company, paying therefor $1,450 in cash and its draft for $4,040, payable one year from date. This purchase included the notes in suit. Before making this purchase the plaintiff looked up the defendant's standing and found that he was financially responsible. In the latter part of that year the government began an investigation of the company's use of the mails, and the company went into bankruptcy. At the close of the evidence the plaintiff's motion for a directed verdict was granted, subject to exception.

Goss & James, of Berlin, for plaintiff.

Ovide J. Coulombe, of Berlin, and Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendant.

PEASLEE, J. [1-3] The law governing this case is stated in Hallock v. Young, 72 N. H. 416, 57 Atl. 236. There being evidence for the consideration of the jury that the notes sued upon were obtained by fraud, it was incumbent upon the plaintiff to show that it was a bona fide holder for value. Upon this issue it had the burden of proof,

Where inferences are to be drawn from the and if upon the evidence a reasonable man evidence, the questions are for the jury.

6. EVIDENCE 77(5)-FAILURE ΤΟ CALL BANK CASHIER TO TESTIFY TO BONA FIDES IN DISCOUNTING NOTES.

In an action on notes, which the evidence tended to show were procured through fraud, the cashier of plaintiff bank, which discounted the same, is a competent witness on the question of his innocence in taking the paper, and his failure to testify was sufficient to warrant a finding of bad faith.

might think its good faith in making the purchase was not shown, the defendant was entitled to have that issue submitted to the jury. The negotiable instrument act makes no change in this respect. Laws 1909, c. 123, $$ 52, 59.

[4-6] The evidence relating to the purchase of the notes consists of the testimony of the plaintiff's cashier. The transaction as stated by him could well be found to be one entered into out of the usual course of

Exceptions from Superior Court, Coös banking business, and not in good faith. It County; Marble, Judge.

Assumpsit by the Mechanics' Savings Bank against J. James Feeney. Plaintiff's motion for directed verdict was granted, and defendant excepted. Exception sustained.

Assumpsit upon four promissory notes, for $225 each, dated July 2, 1917, signed by the defendant, payable to the order of the Partin Manufacturing Company three, four, five, and six months from date, and indorsed to the plaintiff before maturity. The company conducted a sales promotion business, furnishing prizes to be offered by retailers. The notes were given in payment for a contract of this nature. The plaintiff was induced

bought paper which it now claims it knew was executed by a responsible maker, and on which it secured what it claims it be

lieved to be a responsible indorser, for 90 cents on the dollar. It did not give cash or credit for it, in the main, but issued therefor its own negotiable security payable long after the notes fell due. It would be natural for a banker to inquire why its customer was discounting paper in this way, losing ten per cent. and taking in exchange other paper maturing at a later date. The object could not have been to convert the paper into available capital, for the transaction postponed that event. It was not to relieve the payee of the chance of insolvency

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