Eastman v. Waisman.

• Decision Date: 04 February 1947
• Citation: 51 A.2d 151
• Parties: EASTMAN v. WAISMAN.
• Court: New Hampshire Supreme Court

51 A.2d 151

EASTMAN

v.WAISMAN.

Supreme Court of New Hampshire.

Feb. 4, 1947.

Transferred from Superior Court, Merrimack County; Leahy, Judge.

Assumpsit by Harold L. Eastman against Saul Waisman, doing business as Cy's Auto Parts & Used Car Company, to recover money paid under protest for repairs on a truck sold to the plaintiff by the defendant under an express 30 day warranty. A verdict was entered and defendant's exceptions were noted and the case was transferred.

Judgment on the verdict.

Assumpsit, to recover money paid under protest for repairs on a truck sold to the plaintiff by the defendant under an express 30 day warranty. Trial by the court (LORIMER, C. J.) who made the following findings and rulings:

‘Verdict on specification with costs. Defendant is liable for balance due on warranty. Court finds that there was no mutual mistake in terms of warranty; that if any mistake was made it was made by defendant's employees while acting within the scope of their authority, and that plaintiff understood and intended that the warranty as written was part of agreement in the sale of the truck.

‘Defendant's exceptions noted.'

The defendant made no request for findings of fact or rulings of law and filed no motions or exceptions except as appears in the court's findings above. Transferred by LEAHY, J. Murchie & Murchie, Peter J. King, and Alexander Murchie, all of Concord for plaintiff.

Osgood & Osgood, and Anson G. Osgood, all of Manchester, for defendant.

KENISON, Justice.

Plaintiff claims the record raises no question of law relying on Head & Dowst Co. v. New England Breeders' Club, 75 N.H. 449, 450, 75 A. 982, 983: ‘that a party cannot question the sufficiency of evidence to support a verdict or material issue in a case by motion after the case has been submitted to the court or jury, or by an exception to the verdict.’ This represents the usual practice in this state and has been followed generally. Hening's Digest, 1242; Bacon v. Thompson, 87 N.H. 270, 177 A. 548; Pflug v. Pflug, 94 N.H. 134, 47 A.2d 829.

This rule has certain limitations and exceptions which, however, do not benefit the defendant. ‘But this rule does not apply to an issue as to the inadequacy or excessiveness of an assessment of damages'; nor to ‘questions of law, apparent upon the face of the findings and rulings filed.’ Freeman v. Pacific Mills, 84 N.H. 383, 385, 151 A. 707, 708. The rule ‘has frequently been relaxed in cases tried by the court,’ particularly where the hearing is designed to secure a ruling of law on a single question before the court. Plante v. M. Shortell & Son, 92 N.H. 38, 40, 24 A.2d 498, 139 A.L.R. 1325.

Applying the rule in non-jury cases, this court has frequently given a brief alternative reason for its holding. Erisman Co. v. Laconia Furniture Company, 87 N.H. 483, 484, 177 A. 409; Association Canado-Americaine v. Marquis, 90 N.H. 125, 127, 5 A.2d 37. Cf. Rickle v. Wyoming Valley Paper Mills, 93 N.H. 191, 195, 38 A.2d 78; 501 Briefs & Cases 439-442. While this discretionary practice cannot be always relied on by the parties it does have the advantage of...