Holden v. Lake Co.

53 N.H. 552 | N.H. | 1873

Sargent, C. J.

Whatever change in the outlet of the pond had been made at all by the defendants was made long before the time complained of by the plaintiffs ; and the question was, whether such change as was made liad operated unfavorably upon the plaintiffs’ rights. It was competent to show what was done and how it affected the stream; and that could be done by showing how it was before the change and how afterwards. If the change affected the plaintiffs injuriously, so that they were entitled to recover any damages, then the damages were to be confined to the time limited in the declaration. But it is difficult to see what other rule could have been applied to show what the effect of the alteration was, than by showing the facts before and after the change, and how the change affected the stream and the plaintiffs’ rights.

This objection, and also the second, must bo overruled. That was a mere offer made to compromise, and not the admission of any independent fact; but the admission of such independent fact, if made, would be for the other side to prove, and not for the party who made it. The plaintiffs had proved a certain arrangement entered into between these parties to try an experiment, and the results of that trial; but that the defendants’ offer had nothing to do with that arrangement is apparent. It is too well settled, that such mere offers for compromise are not admissible for either side to show in evidence, to call for a citation of authorities.

The cost of cloth would be made up of the cost of raw materials, and of the labor expended in the manufacture. The profit, if anything, would be ascertained by deducting from the market value first the costs of material, then the expense of manufacture. But it seems that the expense was not ascertained in that way, nor the profits. When the mill-owner keeps his whole force through the year on full pay, then the amount he manufactures less then the full amount for the year would be so much dead loss, without regard to the profits on a single yard, and the value of the work lost by lack of water would be found by deducting the cost of raw material from the value of the cloth that would have been made with a full supply of water.

To illustrate: suppose the plaintiff keeps twenty hands regularly at work, and to secure their labor he is obliged to pay them so much by the year, whether they work or play. Now, with these twenty hands, with a full supply of water for his machinery, he can make a thousand yards of cloth per day for every full day’s work, or fifty yards per hand ; and he can sell his cloth, when made, at ten cents per yard. Then his cloth for a week, six thousand yards at ten cents, = six hundred dollars. Now, suppose, one week in August, he is delayed for want of water merely, just half the time, and makes but three thousand yards, which would be worth but three hundred dollars. The product of the week’s work would be three hundred dollars less than for a full week; but that is not all loss, for from the full price of the cloth must be taken the cost of the raw material which it would have taken to make the three thousand yards of cloth, which, at the same price as the labor, would be one hundred and fifty dollars for cotton and one hundred and fifty dollars for labor. The cotton is not lost, because it is not used, and the whole amount of the loss to the plaintiff for that week is the one hundred and fifty dollars, which he could have cleared from the labor of his hands, with a full supply of water, more than he did clear, because the water was short. We are unable to see how this evidence was incompetent, with proper instructions, which we are to presume were given.

Nor can we see what the defendants’ suit against the plaintiff, or French’s instructions concerning suits, had to do with the present suit. The question was not whether the plaintiff' and the defendants agreed or disagreed,' were friendly or unfriendly. The simple question here was, whether the defendants were liable in this action, and, if so, for how much ? It might have been competent, when the plaintiff was upon the stand as a witness, to have asked him concerning his relations towards the defendants, whether friendly or otherwise, and concerning his controversies and suits with the defendants, as bearing upon his state of feeling; and if he did not state his relations with the defendants truly, he might have been contradicted upon that point. But this evidence was not offered with any such view. The testimony here was offered as affirmative testimony, as being competent to bear upon the merits of this case, which it was not, and could not be.

The cases supposed by the court seem to be correct, in principle, so far as they are stated, — at least, we do not discover but that they were; and the defendants do not find any fault with the supposed case upon that ground, but on the ground that the supposed case was too nearly like the real case they were trying, as shown by the evidence. If the case supposed was correct, then the defendants’ misfortune was, that the evidence against the defendants was so plain as to amount to simple demonstration, instead of leaving the point in doubt — not the fault- of the supposed case, but of his own testimony. We think the instructions given, and numbered 1 and 2 in the case, were sufficiently favorable to the defendants.

We think it was proper to connect with all the other instructions, as the court did in this case, and to qualify them, by thus connecting with them the question of fact as to whether, by the use of the water by the defendants, as supposed in the proposed instructions, the plaintiffs’ rights to a reasonable use of the water would be interfered with. The rights of riparian owners, and owners of mills on the same stream, are so far mutual, and correlative, and interdependent, that an absolute right of one can seldom be established and defined, without reference to the rights of the others. We think there should be

Judgment on the verdict.