63 N.H. 438 | N.H. | 1885
Counts in contract and tort may be joined in a declaration on a single cause of action. It does not appear that the counts were not on the same cause of action, or that the amendment was necessary, or had any effect upon the trial or the verdict.
The construction of the written contract is the ascertainment of the fact of the parties' intention from competent evidence. Houghton v. Pattee,
The defendants have not argued the questions raised by the evidence relating to the use of water at Rolfe's mill, and do not claim that Rolfe could continue to use the water at that mill as he had used it before the starch mill privilege was leased to the plaintiffs. They put this part of their case on the ground that for his use, at his mill, of any water when it was not running to waste over the dam, he had the plaintiffs' consent.
The use of the force pump to transport water to a house for domestic purposes, not being necessary for the grist-mill, the defendants' retention of the right of such use is not implied. Smith v. Smith (Grafton, June, 1882); Adams v. Marshall,
The jury found that the defendants' negligent or wanton waste and diversion of the water compelled the plaintiffs, acting with reasonable discretion, to discontinue the business for which the lease stipulated the leased premises were to be used. The loss of profits being a damage alleged in the declaration, proof of the amount of such loss was competent. Taylor v. Dustin,
Judgment on the verdict.
BLODGETT and BINGHAM, JJ., did not sit: the others concurred.