Moynihan v. Brennan

90 A. 964 | N.H. | 1914

The failure of the plaintiffs to object to the sufficiency of the evidence to authorize the reformation asked for by the defendant before the case was submitted for decision was a waiver of such objection. Head Dowst Co. v. Breeders' Club, 75 N.H. 449, 450; Coles v. Railroad,74 N.H. 425, 426; Farnham v. Anderson, 74 N.H. 405. The refusal of the court to report the evidence, upon the motion made long after the decision was filed, did no harm to the plaintiffs, for it was then too late to raise the question of the sufficiency of the evidence to sustain the findings.

"Any party aggrieved by the ruling, direction, or judgment of the superior court, seasonably objecting, may allege exceptions thereto." Laws 1901, c. 78, s. 5. Not having "seasonably" objected, the plaintiffs are not entitled to an exception. The court or justice trying causes in equity "shall, if either party request it, give his decision in writing, stating the facts found and his rulings of law." P. S., c. 204, ss. 9, 10. "It is the facts that are to be reported and not the evidence." Burnham v. McQuesten, 48 N.H. 446, 451. The statute does not in terms require the request for a report of the facts to be made before the result is announced; but a reasonable construction implies that such request must be made before or at the time the cause is submitted. Such is understood to be the universal practice.

It does not appear when a report of the facts was requested; but the court, though declining to state the evidence, reports fully the facts. The controversy related to the division line of a tract of land extending from Vine street to Center street. There were buildings on both streets. The plaintiffs had occupied as tenants the buildings on Vine street for about eight years. The division line of occupancy between the tenants of the buildings on the two streets was clearly marked. The parties agreed to a sale of the premises facing on Vine street. Neither party understood that the sale embraced any portion of the Center-street property. By mistake in making the deed, the lot conveyed was described as extending easterly 125 feet from Vine street. This distance includes a strip of land twenty-nine feet in depth that had been used and occupied with the Center-street property and part of the buildings. The extent of the lot in feet was not discussed in making the trade, and neither party knew that the distance named would include a part of the Center-street property. Upon these facts, the power and duty of the court to order a reformation of the written document to correspond with the actual contract of the parties is beyond question. Searles v. Churchill, 69 N.H. 530; Minot v. Tilton, 64 N.H. 371.

Case discharged.

All concurred.