Head & Dowst Co. v. New England Breeders' Club

• Decision Date: 01 March 1910
• Citation: 75 A. 982,75 N.H. 449
• Parties: HEAD & DOWST CO. v. NEW ENGLAND BREEDERS' CLUB.
• Court: New Hampshire Supreme Court

75 A. 982

75 N.H. 449

HEAD & DOWST CO.

v. NEW ENGLAND BREEDERS' CLUB.

Supreme Court of New Hampshire. Hillsborough.

March 1, 1910.

Transferred from Superior Court, Hillsborough County; Peaslee, Judge.

Action of assumpsit by the Head & Dowst Company against the New England Breeders' Club. There was a verdict for plaintiff, and the cause was transferred on defendant's exceptions. Exceptions overruled.

Burnham, Brown, Jones & Warren, for plaintiff.

Henry F. Hollis, for defendant.

BINGHAM, J. This is an action of assumpsit, brought to enforce a builder's lien, under sections 10, 16, and 17, c. 141, of the Public Statutes, for labor performed and materials furnished in the construction of certain buildings and appurtenances. In the superior court a general verdict was found for the plaintiffs, and a judgment in rem was ordered against all the land described in a certain deed to the defendants, including the buildings and appurtenances constructed thereon by the plaintiffs. The verdict being general, it is to be assumed that the trial court found that the plaintiffs performed labor and furnished materials in the construction of buildings and appurtenances on the defendants' land under a contract, that the defendants were owing them therefor at the time the suit was brought the sum awarded, that the attachment was made within 90 days from the last rendition of services or furnishing of materials under the contract, and that such other facts were found as were essential to the creation and preservation of the lien. Noyes v. Patrick, 58 N. H. 618.

The defendants did not move in the superior court for a nonsuit or a verdict before the case was submitted to the trial judge for decision, or at any other time. They made no requests for special findings of fact, or rulings thereon, either before the case was submitted or before it was transferred to this court, and no such findings or rulings were made or reserved for consideration here. They did, however, except to the verdict and judgment, and to the admission of certain evidence. The questions raised by these exceptions were transferred to this court, and were in order for argument at the May session, 1908; but as no one appeared to support them, and as it was suggested that the defendants were in bankruptcy and that a trustee had been appointed, the court declined to proceed with the case until the trustee was notified, and of its own motion ordered notice to the trustee of the pendency of the suit. Thereafter, the trustee declining to appear, the exceptions were overruled as upon default Head & Dowst Co. v. Breeders' Club, 74 N. H. 605, 70 Atl. 248.

At the February session, 1910, the trustee appeared, moved to have the order made at the May session, 1908, stricken off, and asked to be heard upon the exceptions taken to the admission...