Coles v. Railroad , 74 N.H. 425 ( 1908 )

The agreement at the close of the case may fairly be construed to mean that the defendant admits its liability as a common carrier for the full value of the property, unless facts are disclosed which limit such liability. The defendant makes this admission in its brief and joins issue with the plaintiff on the question whether she is bound by the bill of lading. Both parties assume that the reported facts, taken in connection with the testimony of the plaintiff, present a question of law as to the written document being her contract.

Whether she assented to a contract was a question of fact. Gray v. Jackson, 51 N.H. 9, 12. Whether there was any evidence from which it could be found that she did not assent was a question of law. Ib. If the issue of fact was tried, this question of law was waived unless raised in the superior court. The sufficiency of the evidence offered to sustain a verdict upon the issue tried must be brought in question before the evidence is closed. Elwell v. Roper, 72 N.H. 585, 587.

The transferred case does not show what proceedings were had, or whether there was any trial. The difficulty of attempting to dispose of the case is thus increased. As the case stands, it contains some material facts and some evidence as to some other material facts, coupled with an agreement that if the ultimate conclusion of law is one way there is to be a certain judgment, and if it is another way there is to be a different judgment. The basic question of fact, whether the plaintiff assented to the bill of lading, was not answered, nor was the sufficiency of the evidence ruled upon. If a defendant wishes to raise the question as on a motion for a nonsuit, he must, in the absence of an agreement for a transfer without ruling, make the proper motion at the trial. Farnham v. Anderson, ante, 405. So far as appears, this has not been done, and the case stands as one where the evidence is transferred to this court without any ruling or agreement as to its sufficiency, or any finding of what it proved. Such a case presents no question of law. Morse v. Morse, 71 N.H. 622.

The agreement of counsel would present the case for consideration upon the facts recited, were it not that the evidence is included in the statement of facts. It may be doubtful what is meant by this admixture, but it must at least mean that the case is not to be disposed of without a consideration of the evidence in this court. The evidence must have been added for some purpose, and the only ones conceivable are those already mentioned, i. e., either that its sufficiency to support a finding be settled, or that a finding be made from it. The one question is not properly raised, and the other cannot be brought here for decision.

Taking the case strictly according to its letter, a final judgment against the defendant might be rendered as the matter now stands, for it has staked its rights upon the answer to the query whether upon the "state of facts" the plaintiff's damages are limited. But as the course of the argument plainly indicates that both parties understood important questions of law were presented, and as it also appears that these questions, or some of them, may be of the substance of this controversy, justice seems to require that the case be returned to the superior court for a determination of the issue of fact as to whether, either by assent in fact or by estoppel, the bill of lading became the plaintiff's contract. If it is found to be her contract, the facts as to where the loss occurred, and whether by the defendant's negligence, may be of importance.

Case discharged.

All concurred.