(80 N. H. 590) PATTEN v. PATTEN. (No. 1761.) (Supreme Court of New Hampshire. Sullivan. Nov. 1, 1921.) 1. Evidence 276-Statements by decedent against interest held admissible as if alive and a party. Statements by a decedent tending to controvert a claim made for her at the trial are admissible precisely as they would be admissible against her if alive and a party. 2. Trial 149-Insufficiency of evidence waived by submission of case without objection. A contention that the evidence is insufficient to authorize an adverse finding held waived by submission of case without objection to the tribunal trying the fact. remembered that reasonable diligence is a relative expression. The presumption always is that the movant did not exercise due diligence. Presumptions of this nature are of inferential origin. They are disputable. When rebutted there's an end of them. And, as Mr. Justice Hanson has shown, when apparently an injustice looms, juridical postulates are soon repelled by countervailing proof. Cobb v. Cogswell, supra. Quite true is it, in literal translation of an ancient proverb, that it is for the interest of the republic that there shall be an end of litigation. But proverbs, it has well been said, should go in pairs, for a single one tells simply half a truth. Equally true is it that it is for the interest of this republic that verdicts begotten by falsehood be not a fashion of the courts. What constitutes due diligence depends on the facts of each case. Hagar v. New England Ins. Co., 63 Me. 502, Bill by Russel F. Patten against Lambert 505. The evidence must not only be newly D. Patten, for an accounting. Judgment for discovered, but it must be strong. Snow-defendant, and plaintiff excepts. Exceptions man v. Wardwell, 32 Me. 275. It must be of such character, of such weight, and of such value as to make it appear to the court, not that a different conclusion necessarily, must be reached, but in probability that an unlike verdict would be arrived at, were the case to be tried anew. Parsons v. Railway Co., 96 Me. 503, 52 Atl. 1006; Mitchell v. Emmons, 104 Me. 76, 71 Atl. 321. The idea, never very generally prevalent, that appearances of injustice are inconsequential, was long since thrown onto the scrap heap of exploded notions. [2] Plaintiff's president was its principal witness. As the case poised, he alone was its material witness. Against him the defendant, Greek-born. These two men, in witnessing, giving virtually all the evidence; one of them, it may be, did not comprehend the meaning in technical precision of the legal term "agent." The whereabouts of Pappas, the manner of whose identity with the case was of high importance, the defendant did not know. Perchance, had defendant sought long enough and far enough, he might have located him, though he had been gone from home a month before his own son knew where he was in Europe. But the efforts that defendant made to find him had proved unavailing. After the trial the invoices came into view. They seem to reveal both the probable presence of falsity designedly made, and resulting glaring injustice done the defendant. The law laments injustice. It holds perjury in abomination. It is the opinion of the court, in the exercise of a sound discretion, that it seems probable that upon another trial there would be a change in the result. Exceptions from Superior Court, Sullivan County; Marble, Judge. overruled. See, also, 79 N. H. 388, 109 Atl. 415. The plaintiff, as executor of Mary L. Patten, sought to charge the defendant upon sundry notes signed by him and payable to the deceased. Upon trial the court found for the defendant, and allowed the plaintiff's bill of exceptions to the admission of a verbal statement of the deceased tending to sustain the defendant's contention, and to his refusal to entertain a motion to set aside the findings because unsustained by any evidence made more than 30 days after the findings were announced. Fred H. Brown, Somersworth, and Hurd & PER CURIAM. [1] Statements made by the deceased tending to controvert the claim made for her at the trial were admissible precisely as they would be admissible against her if alive and a party. 2 Wig. Ev. § 1081 (1). [2] The contention that the evidence was insufficient to authorize an adverse finding is waived by submission of the case without objection to the tribunal trying the fact. Barker v. Company, 78 N. H. 571, 103 Atl. 757, L. R. A. 1918E, 709; Smith & Sargent v. Company, 78 N. H. 152, 159, 97 Atl. 872. The court properly ruled that no question of law was raised by the motions. As the denial of the motions was not erroneous whenever after verdict they were made, the fact that they came too late under the Rules of Court, 78 N. H. 697, rule 53, need not be relied upon. Granting the plaintiff until February 1, 1921, to file exceptions could not have been intended or understood by the plaintiff to authorize The newly discovered evidence motion is the allowance of exceptions already waived, sustained. or which presented no question of law. Exceptions overruled. A new trial is granted. 1. Trespass 67-Direction of verdict held properly refused. In an action under G. L. 6956, for trespass by cutting timber, testimony by the man who did the cutting that one of the defenaants advised and directed the cutting of the timber in controversy warranted a refusal to direct a verdict for such defendant. 2. Appeal and error 978(1), 979(1)—Re for defendant Dailey, and cause remanded as to the other defendant. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. H. C. Shurtleff, of Montpelier, for plaintiffs. Edward H. Deavitt and Fred L. Laird, both of Montpelier, for defendants. MILES, J. This is an action of tort for the recovery of treble damages, under G. L. 6956. The case was tried by jury, and a verdict was rendered for the plaintiff to recover $175 actual damages, and also a special ver fusal to set aside verdict contrary to indict, in substance, that the defendant did not struction or unsupported by evidence can be reviewed. The rule that the court's discretion in deciding a motion to set aside the verdict cannot be reviewed on exceptions, unless the court failed to exercise its discretion or abused it, does not apply when all the evidence is before the court, and the exception is based on the ground that the verdict is contrary to the instructions of the court or wholly unsupported by the evidence. 3. Boundaries 37 (3)-Evidence as to monuments held not to sustain claim of jog in range line. In trespass to recover for the cutting of timber, where defendant claimed the boundary of his tract was on a line joining with the range line between other lots on each side of plaintiff's and defendant's lots, evidence on behalf of plaintiff as to a marked tree and pile of stones on the lines dividing defendant's land from that on each side, but several rods south of the range line, held not to support a verdict sustaining plaintiff's contention that the range line had a jog where it divided his lot from defendant's. 4. Boundaries 33-Monuments do not control until they are established by evidence. The rule that monuments control courses and distances in locating disputed boundaries does not apply until existence of the monuments is established by the evidence. 5. Boundaries 48 (7)—Mistake in subdivision of lot does not affect boundary of adjoining lot. If the two owners of a lot, in marking the line between them, placed the corner monuments several rods south of the corner of the lot, their action does not affect their rights in a controversy as to the boundary between their lot and that adjoining on the north. commit the trespass through mistake, nor had reason to believe that the trees cut were on the premises of the defendants. The defendants severally moved at the close of all the evidence for a directed verdict. The motions were overruled, and exceptions were allowed the defendants. The grounds of the motions were that there was no evidence tending to show that either defendant cut any timber on the disputed territory, or authorized any one to cut timber on said territory. After the general and special verdicts were rendered, the defendant Lowe moved to have the verdicts set aside, but the motion was overruled and an exception was allowed. The grounds of the motion were: "(1) That said verdict is against the weight of the evidence; (2) that said verdict is not supported by the evidence in said case; (3) that the jury in rendering said verdict disregarded the evidence in said cause respecting this defendant; (4) that the jury in rendering said verdict disregarded the instructions of the court as affecting the liability of this defendant." A careful examination of the evidence discloses that defendant Dailey did none of the cutting complained of, nor does the evidence disclose that he advised, commanded, countenanced, or approved of it after it was done. He had nothing to do with it. The court erred in overruling his motion for a directed verdict. [1] As to Lowe the case is different. In his case there was evidence fairly and reasonably tending to prove that he advised and directed cutting the timber claimed by the plaintiffs to be upon their land. The witness Lyon, who cut it, testified to that fact. Upon the grounds of this motion there was no error in the court's refusal to grant it. But his motion to set aside the verdict presents a different question. [2] As claimed by the plaintiffs, this motion was addressed to the sound discretion of the court, and its action upon that motion cannot be reviewed here unless that court failed to exercise its discretion or abused it. Lincoln v. Central Vermont Ry. Co., 82 Vt. | range line between their land and Dailey's 187, 72 Atl. 821, 137 Am. St. Rep. 998, and cás-land, jutting onto land claimed by Dailey es cited; French v. Wheldon, 91 Vt. 64, 99 Atl. 3 or 4 rods. 232. When all the evidence, as in this case, No question being made but that the origis before this court on an exception to the inal range line was the true division line beaction of the trial court in denying such a tween the plaintiffs' and Dailey's land, the motion, based on the ground that the verdict | burden was upon the plaintiffs to show that is contrary to the instructions of the court, the line claimed by them was a part of the or wholly unsupported by the evidence, the original range line. This they could not rule as to the discretion of the court does do without showing that there was a "jog" not apply, and the question is reviewable. in the line as claimed by them. This they If it is clear from the record that the ver- claim to have done by showing a beech tree dict is contrary to the instruction of the marked on four sides, in the line between court, or that there is no evidence supporting Dailey's and the ice company's land, situit, the action of the trial court cannot be ated 3 or 4 rods southerly of the line claimed sustained. French v. Wheldon, supra. by the defendants, and a pile of stones at the other end of their claimed line, and by the testimony of the plaintiff William that there were a very few spotted trees between the spotted beech and the stone pile, and by the testimony of a Mr. Pembroke, who testified on direct examination that he had no recollection of any spotted trees between the beech tree and stone pile, but on cross-examination testified that there were some marked trees, but how they were marked, and where situated, and what kind of tree was marked, neither witness attempted to state. The witness Lyon, called by the plaintiffs, and who cut the timber on the disputed territory, to the line claimed by the defendants, testified that he saw no marked trees between the marked beech and stone pile. Turning to the evidence, we find the controversy was over the original range line between the plaintiffs' and Dailey's land. The plaintiffs' land lay northerly of Dailey's land, and was separated from it by the original range line, and no question is made but that the original range line is the true division line between those lands. The plaintiffs claim that there is ą “jog” in the range line between their land and Dailey's extending southerly three or four rods onto land claimed by Dailey. The situation can be better understood by referring to the following diagram: S. 41° W. 53 S. 49 E. 55 The plaintiffs own the southerly part of lot 54, and the defendant Dailey owns the westerly half of lot 41, and the ice company owns the easterly half of lot 41 and 25 acres of the easterly part of lot 42. The line claimed by the plaintiffs as the true division line between their land and Dailey's is represented on the plan above by the dotted line, and the line claimed by the defendants is represented by the straight line separating lots 54 and 41. It appeared that the line between 55, known as the Ducker lot, and 40, known as the Senter lot, and the line between lot 53, known as the Ladd lot, and lot 42, known as the Daniels lot, were parts of the original range line in the second division of lots in the town of Middlesex, and that the line claimed by the defendants coincided at each end with those lines, as represented on the plan above. The plaintiffs claimed, as we [3] In this state of the evidence, the testimony of the plaintiff William and Pembroke respecting the spotted trees between the beech and stone pile was so uncertain and indefinite that, in the light of the evidence and the circumstances of the case, it had no tendency to prove that there was any "jog" in the range line, and that the line claimed by the plaintiffs was a part of the original range line. Their testimony failed to show whether those marks, if in fact they existed, were fresh or old. The probative force claimed by the plaintiffs for the marked beech consists in the fact that it is marked on four sides, and that those marks are old; but how old, or why marked on four sides as a corner of four lots, is not shown. While marked as a corner of four lots, at best it can mark only the northeasterly corner of the Dailey land, which is not, and never was, an original corner. As a witness so much relied upon by the plaintiffs, because of the manner in which it is marked, it must be admitted that it appears to be that which it is not. Its markings may as well be said to indicate a line tree as to indicate a corner claimed by the plaintiffs. In neither case is it marked as the evidence tended to show such trees are marked. Situated as it is, conceded to be in the division line between the Dailey land (115 A.) On the evidence in the case, the jury could not have found the line as claimed by the plaintiffs, and the court erred in refusing to set the verdict aside. sonable to presume that it was marked as line as the plaintiffs claim it, your verdict a line tree than as a corner. Considered in should be in favor of both defendants." connection with the facts that the old parchment plan of Middlesex and the proprietor's records of the second division of that town show that the range line between 54 and 41 is a straight line, that the line claimed by the defendants was recognized by Charles Wiggins, a former owner of the plaintiffs' premises for about 45 years, as the true division line between those lots, and that the spruce timber had been cut on the plaintiffs' land down to the line claimed by the defendant, leaving the spruce on the disputed territory uncut until it was cut by the ParkerYoung Company and their employees, we think that what appears about the marked beech has no tendency to prove that the line In the course of the trial, there was some evidence relative to a survey made by a Mr. Wheeler, but, as stated by the court in its instructions to the jury, neither side claimed "anything for that survey as fixing the lo cation of the division line." The foregoing holdings make it unnecessary to consider other questions raised in the exceptions. Judgment reversed, and judgment that defendant Dailey recover his costs. As to de claimed by the plaintiffs is a part of the fendant Lowe the cause is remanded for a original range line between lots 54 and 41. new trial. (97 Conn. 21) rector General of Railroads, et al. (Supreme Court of Errors of Connecticut. Nov. 30, 1921.) 1. Carriers 160-Statute held to recognize contract limitation of time for instituting suits. [4] What has been said respecting the marked beech may be said with equal, if not greater, force respecting the stone pile. To adopt the plaintiffs' view it would be neces- HUMPHREY-CORNELL CO. v. HINES, DIsary to disregard and contradict the ancient records of Middlesex, and adopt a line not shown to be connected at either end with the original range line. While it is true that monuments prevail over courses and distances, it is equally true that to have that force the existence of the monument must be established. If the record had described this Act Cong. March 4, 1915 (U. S. Comp. St. beech tree as being in the range line between § 8604a), providing that it shall be unlawful for lots 54 and 41, though not situated exactly in any carrier to provide by contract, etc., a shortline with the range line, there would be some er period for the institution of suits than two ground for claiming that the range line ran years, recognizes the legality of a contract limthrough it. But here the record does not de-iting the time within which an action may be brought. scribe it, and the evidence does not show that it was an original monument, but rather | 2. Carriers 160—Contract limitation of suits the contrary. The plaintiffs claim it marks the northeast corner of the Dailey land. Assuming this to be so, it had its origin at the time lot 41 was divided; for nothing called for a marked corner tree in the center of the range line until that division was made, and that division must have been subsequent to the allotment creating lot 41, and hence this marked beech could not have been an original monument in that range line. [5] Though the parties interested in the division of lot 41 may have made a mistake or have intentionally located the corner of their respective divisions at the marked beech, it in no way affects the rights of the parties in this suit; for, as claimed by the parties, and as the court instructed the jury, the rights of the parties depended upon the location of the true division line between those lots, and the action of the parties in dividing lot 41 in no way changes the range line between lots 54 and 41. The court instructed the jury, without objection or exception, as follows: to two years and one day not unreasonable. Under Act. Cong. March 4, 1915 (U. S. Comp. St. § 8604a), a provision of the uniform bill of lading in use in November, 1916, requiring actions to be brought within two years and one day after delivery, or after the expiration of a reasonable time for delivery, subsequently declared just and reasonable by the Interstate Commerce Commission and prescribed in its approved form of bill of lading, was not necessarily unreasonable. 3. Carriers 51-Rights of parties governed by bill of lading under which shipment made. The rights of the parties to a contract for the shipment of goods under the uniform bill of lading must be determined on the basis of the bill of lading as it stood when the contract was therein by the Interstate Commerce Commismade, notwithstanding any subsequent change sion. 4. Carriers 166-Reasonable time for delivery as respects limitation is question of fact. Under a provision of the uniform bill of lading requiring suits to be brought within two years and one day after a reasonable time for delivery has elapsed, ascertainment of what was "If you find the line to be as the defend- a reasonable time for delivery was a question ants claim it to be, or if you fail to find the of fact for the court in a case tried by the court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Carriers 168-Findings as to reasonable | port for delivery there, and on November 13, time for delivery of goods shipped construed. 1916, loaded both shipments into a car proIn an action for the loss of goods shipped vided by the Michigan Central Railroad. under a bill of lading requiring suits to be The Michigan Central Railroad delivered brought within two years and one day after the said car to the Toledo, St. Louis & Western expiration of a reasonable time for delivery, the trial court's finding that a reasonable time for delivery would surely be considerably less than six months must be construed as allowing six months when no other time was specifically named. 6. Carriers 160-Finding that six months was reasonable time for delivery as respects limitation of time to sue held extremely liberal. Railroad, which company, on November 13, 1916, issued a bill of lading for each shipment. The bill covering the shipment in question provided: "Suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed." Under a bill of lading requiring suits to be brought within two years and one day after the expiration of a reasonable time for delivery, a finding allowing six months as a reasonable On November 14, 1916, the Toledo, St. time was extremely liberal, where the only evi-Louis & Western Railroad issued a waybill dence or specific subordinate fact appearing in designating the car, describing the consignee the finding was that a similar shipment on the same date and purporting to be in the same car was delivered in eight days. 7. Carriers 160-Limitation of actions held not to run from time of denial of claim. Under a provision of the uniform bill of lading as used in November, 1916, requiring suits to be brought within two years and one day after a reasonable time for delivery had elapsed, such period did not, as claimed, run from the time the claim was rejected by the carrier, at least where it was rejected over three months before the expiration of such period computed from the expiration of a reasonable time for delivery, and the claimant by again presenting the claim could not affect the result of the previous denial as Saltman Bros., Bridgeport, and making no reference to plaintiff's shipment. Pursuant to railroad practice, the waybill, which serves as directions to crews handling the shipment, accompanied the car to and arrived with it at Bridgeport on November 21, 1916. The New Haven Railroad, not knowing that the car contained plaintiff's shipment, notified Saltman Bros. of its arrival, and placed it on a side track for delivery on November 22, 1916. Saltman Bros. unloaded and released the car empty on November 23, 1916. On December 28, 1916, the Toledo, St. Louis & Western Railroad issued a waybill describing plaintiff's shipment as having been sent ahead in said car on No 8. Carriers 160-Ruling of Interstate Com-vember 13, 1916. The waybill arrived at the merce Commission as to provisions of bill of lading held not to affect previous shipment. Where the Interstate Commerce Commission in ruling, in December, 1919, that bills of lading limiting the time for bringing suit should allow six months after the rejection of the claim by the carrier, unless rejected more than six months before the expiration of the period of limitation, entered no order but simply pro,vided that carriers would be expected to modify their bills of lading in accordance therewith, and that further action might be taken if this was not done, the proposed change was pro: spective and did not affect a bill of lading issued in 1916. New London office of the New Haven Rail- corresponded concerning the Appeal from Superior Court, New London ing his decision on April 14, 1919, the first County; John W. Banks, Judge. Action by the Humphrey-Cornell Company against Walter D. Hines, Director General of Railroads, and another, to recover damages for the loss of goods shipped in interstate commerce. Tried to the court and judgment rendered for defendants, from which plaintiff appeals. No error. specific reference to the two-year and oneexperienced shipper, was at all times aware day limitation was made. The plaintiff, an of and bound by the bill of lading limitation and was at no time misled by the defendants whose declination of the claim was based in part upon a bona fide doubt as to its merit. The plaintiff failed to bring its action within the prescribed period. The Harbauer Company of Toledo sold the To the complaint defendants pleaded three shipment of catsup in question to the plain- defenses: A denial, that it never received tiff for delivery at New London and a simi- the goods, and, as a third defense, that the lar shipment to Saltman Bros. of Bridge-action was not brought within the two years |