| N.H. | Jul 15, 1859
The mortgage, for the foreclosure of which this suit was instituted, contained an alternative condition. The defendants covenanted to support and maintain the plaintiff and her husband, and the survivor of them, in a specified manner on the premises mortgaged, or, in case they should choose to have a tenement in Wilton, by themselves, instead of such support on the premises, then the defendants were to provide for them a suitable tenement, and furnish their support there. It was for the breach of the latter part of the condition that the action was brought.
The defendants were to provide the tenement, if the plaintiff should so elect. The alternative was with her and not with them, and consequently it devolved upon her to notify the defendants of her election, and request the tenement, before any obligation devolved upon them to provide it.
As no time was stated in the contract within which the tenement was to be furnished after demand made, the law would fix it at a reasonable time.
The plaintiff made the demand on the 11th day of July, and the suit was commenced on the 8th day of August following; and the case finds that the only question submitted to the jury was, whether the defendants had provided a tenement within a reasonable time.
The verdict having been for the plaintiff upon this question, the defendants moved to set it aside for the alleged erroneous admission of one piece of evidence only.
As the defendants were under no obligation to make any exertions to procure the tenement until after demand, the issue to the jury must have been whether, after such
The evidence excepted to was vile, profane and abusive language, used by one of the defendants towards his mother, the plaintiff, before the demand was made. And we are unable to see how such evidence could have been relevant to the question before the jury. "What tendency had such language to prove a breach of the condition, or unreasonable delay in providing the tenement, when a demand for it had not then been made, and the defendants were at that time under no obligation to provide it ?
It appears to us quite plain that the evidence was inadmissible. It was language used, not in regard to the contract or condition of the mortgage, but in regard to the plaintiff herself. It was personal abuse of her before she had perfected her claim by making the demand, and had no legitimate connection with the subsequent acts of the defendants in procuring the tenement.
We might perhaps hold the evidence immaterial, and on that account decline to set aside the verdict, were it not that the character of the testimony was such as would be very likely to prejudice the minds of the jury, and influence their decision against the defendants. Winkley v. Foye, 28 N. H. (8 Fost.) 519; Cook v. Brown, 34 N. H. 460.
As the verdict must be set aside for the admission of this evidence, it becomes unnecessary to examine the question raised by the plaintiff upon the assessment of the damages.
New trial granted.