102 A. 540 | N.H. | 1917
As the issue raised by the bill in equity was left undetermined by the trier of fact, a new trial must be had unless the plaintiff abandons the proceeding. From the evidence considered by the court, the draft of a decree and a statement of the case and the notes of testimony and the fact that both decree and statement were unsigned, different conclusions might be reached as to what the trial judge intended to do, but it cannot be found that he did what he did not do. Report of an oral statement of the trial judge as to the finding he proposed to make would be evidence of the same character as the written memoranda left in this case, but it would hardly be contended that a post mortem judgment could be rendered upon the statement of a trier of fact as to what he intended to find.
The verdict ordered in the suit at law is also evidence of the orders intended to be made in the equity suit. But as such orders were not made, the verdict cannot stand. Knowledge by the plaintiff that the covenants were false when made would be no answer to the action at law. Foster v. Foster,
The plaintiff's exception to the denial of his motion for a new trial sustained.
Decree set aside: new trial granted.
All concurred.