111 A. 689 | N.H. | 1920
The plaintiff's claim is not for commissions but for damages for the breach of a stipulation alleged to be part of an implied contract under which the parties did business from October 31, 1908, to January, 1910. The plaintiff contends that the adjudication *499 of the Massachusetts court in 1913 as to what the parties meant in their written contract of 1908 is res judicata in this suit; and the defendant claims that the same judgment conclusively determined that for the period covered by this suit the parties did business under an express written contract which excepted commercial cabs, trucks and taxicabs from the plaintiff's exclusive privilege. The referee has not passed upon the several claims as to res judicata, but finds if the question is open that there was no written contract in existence but that the implied contract under which the parties acted contained this exception. Assuming that for the purposes of this suit it is conclusively determined by the litigation that up to October 31, 1908, taxicabs were included within the plaintiff's exclusive privilege, the parties had the power to except them thereafter as they did in the written contract of 1910. They could do the same under the contract by which they elected to govern their relations up to 1910. Whether they did so or not is a question of fact. The referee's finding from evidentiary facts, abundantly sufficient to authorize the conclusion, that the parties understood that the defendant might sell commercial cabs and trucks including taxicabs to anyone, anywhere, without compensation, commission or liability of any kind to the plaintiff, is a finding that although the parties continued to do business in the same manner as before, they did so upon the understanding that taxicabs were excepted from the plaintiff's exclusive privilege even if it must be found by force of the Massachusetts judgment that up to October 31, 1908, they understood they were included.
Where parties after the termination of a contract proceed in the same manner, without any new contract, there is a presumption that they understand their relations are governed by the terms of the expired contract. New Hampshire Iron Factory Co. v. Richardson,
Judgment on the report for the defendant.
WALKER, J., was absent: the others concurred.