came a mixed question of law and fact for the jury to determine. Trustees of East Hampton v. Vail, 151 N. Y. 463, 45 N. E. 1030; Kenyon v. Knights Templar & M. M. Aid Ass'n, 122 N. Y. 247, 25 N. E. 299; Lamb v. Norcross Bros. Co., 208 N. Y. 427, 102 N. E. 564. The attention of the court being called thereto by the taking of the foregoing exception, a supplemental charge upon the same subject was given as follows: "In respect to the letter of December 2d [Exhibit Al, it is called to my attention that I charged that this letter standing alone would amount to a ratification of the purchase. I intended to say that that letter was evidence tending to show the defendant ratified the contract made by Lucius, if you find it referred to that contract, and, with the other evidence on the part of the plaintiff, if you find the facts established as the plaintiffs' evidence tends to show, that would be a ratification. If you fail to so find, why then it would not." To the court's statement that the letter is evidence tending to show a ratification of Lucius Gordon's arrangement, and with the other evidence would be sufficient to warrant a ratification, an exception was saved. It has already been seen that, if this writing related to the original contract of sale, it was evidence tending to show what the contract was, and in addition thereto it may be said, in disposing of this exception, that, if the writing related to that contract, it had a tendency to ratify it, and with the other facts as to the agency, the making of the contract, the talk on the occasion when the writing (Exhibit A) was drawn up and signed, the fact that plaintiffs then supposed the box boards had all been delivered "except picking up the yard," and the purpose of making the writing, all established in accordance with the tendency of plaintiffs' evidence, there can be no reasonable doubt as to the soundness of the charge that it would be a ratification of the contract. It follows from what has been said that the part of the charge to which exception was taken, that, if the credit was given in the first instance to the defendant, through the agency of Lucius Gordon, and the latter had authority to buy this lumber of the plaintiffs, then the plaintiffs could recover for so much lumber as they furnished under the contract, or, if Lucius Gordon undertook to purchase this lumber on the credit of the defendant, and the plaintiffs sold the lumber under that arrangement upon the credit of the defendant, and afterwards the latter, by his conduct, ratified the contract, that would be binding upon him, and would be an original undertaking of his, and he would have to pay the bill, is without fault. The exceptions state that the plaintiffs' evidence tended to show that substantially all the box boards delivered by them at Gordon's mill were manufactured into box shooks and sold and pay received therefor and deposited in the Lyndonville National Bank during the summer, fall, and winter of 1904, except 28, claimed their evidence tended to show, was not manufactured into shooks, but that some 4,000 or 5,000 feet thereof was used by Gordon Bros. to board up their mill, and that a little later the mill and the balance of this Burke lumber came into the possession of the defendant, by whom it was treated and used as his own. This claimed tendency of the evidence was denied by the defendant; but a careful examination of the transcript, which is made to control, shows the statement in the bill of exceptions fully warranted. Exception was taken to the charge to the effect that, if these boards were sold under the same contract, and under the same arrangement, as the rest of the box boards, and the defendant had them by delivery to Gordon Bros., and they were kept and used by them, and by the defendant, without any arrangement being made respecting them, as the plaintiffs' evidence tended to show, then the plaintiffs could recover therefor. This part of the charge was without new error. Plaintiffs' account of the lumber sold to the defendant was kept on two pages of a book marked Plaintiffs' Exhibit No. 4. The evidence tended to show that the plaintiffs' bookkeeper correctly took the statements of the different amounts of lumber delivered from small passbooks carried by the different teamsters who drove plaintiffs' teams in drawing the lumber, and brought these books to the bookkeeper for that purpose; that the teamsters owned these passbooks, oftentimes, and perhaps always, had their personal accounts on them, and, after the figures showing the amounts of lumber were taken off by the bookkeeper, they carried the passbooks away; that the entries of the lumber on all the different passbooks were in the same handwriting. Exhibit 4 was admitted in evidence subject to defendant's objection that it was not an original book. Lucius Gordon testified that he counted the lumber as it was drawn in by the teams; each one of the teamsters had a little book he carried in his pocket; and that he (Lucius) set the amount they drew on their different books, and also kept it himself on another book, which he could not find. The evidence does not show that the entries thus made by him on the passbooks were anything more than mere figures of amount of lumber, not entered as a charge for or on behalf of the plaintiffs. We think it fairly inferable from the evidence that the passbooks from which the bookkeeper took the amounts of lumber delivered were the passbooks on which Lucius Gordon set the figures showing the amounts of lumber drawn by the respective teamsters, as "counted in" by him, and that these were the figures from which the bookkeeper made the charges constituting the account against the defendant, Exhibit 4. The evidence tended to show that this account was kept by the plaintiffs in the regular course of business, and that this lumber they ever made. It seems clear that the passbooks were simply the books on which Lucius Gordon made memoranda of the amounts of lumber as he counted it in for the purpose of accuracy in the charges to be made by the plaintiffs, and that Exhibit No. 4, not the passbooks, was the plaintiffs' original book, and as such properly received in evidence. Gifford v. Thomas' Estate, 62 Vt. 34, 19 Atl. 1088. After verdict, and before judgment, defendant moved to set aside the verdict on various grounds, and, on exception to the overruling of the motion, he relies on the second, third, and eighth assignments, which were as follows: Second, because upon the evidence there could not be a verdict rendered in excess of $672.95; third, because the jury must have charged the defendant for 28,200 feet of lumber that on all the evidence was not manufactured into box shooks; eighth, because there was no evidence tending to show liability on the part of the defendant, except for funds that came into his hands, and it appeared that he had put over to the plaintiffs their share of all such funds. Yet the discussion of the evidence already had is sufficient to show these assignments to be without merit, and they need not be further noticed. been so made, complainant was not entitled to Dig. §§ 963-965, 967; Dec. Dig. & 405.*] DEEDS MISTAKE. Where the parties agreed to a sale of premises facing on V. street, neither understanding that the sale embraced any portion of the land occupied by buildings facing on C. street, but by to include a strip used and occupied by buildmistake the land conveyed was so described as ings facing on C. street, the extent of the land to be conveyed in feet not having been discussed that the distance named would include any part in making the trade, and neither party knowing of the C. street property, defendants were entitled to have the conveyance reformed to correspond to the actual contract of the parties. of Instruments, Cent. Dig. 88 69-71; Dec. Dig. [Ed. Note.-For other cases, see Reformation § 17.*] Case Reserved from Superior Court, Cheshire County; Chamberlin, Judge. Suit by Daniel Moynihan and another against Dennis Brennan. Judgment for defendant, and the case was reserved on a question of law. Discharged. Bill in equity, to remove a cloud from the plaintiffs' title. The bill alleged that on November 11, 1909, the defendant conveyed to the plaintiffs a tract of land in Walpole, In this view of the case I concur in af- measuring 76% feet on Vine street and exfirming the judgment. (77 N. H. 273) MOYNIHAN et al. v. BRENNAN. tending easterly 125 feet from said street; that he has caused to be recorded two deeds to him, dated in March, 1910, which include a strip 29 feet wide on the easterly end of the tract conveyed to the plaintiffs by the deed (Supreme Court of New Hampshire. Cheshire. of November 11, 1909; and that the later May 5, 1914.) 1. TRIAL (§ 76*)—OBJECTIONS-SUFFICIENCY OF EVIDENCE-TIME. Plaintiffs' failure to object to the sufficiency of the evidence to authorize the reformation of a conveyance asked for by defendant, before the case was submitted for a decision, was a waiver of such objection. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 172, 183-190, 237; Dec. Dig. § 76.*] 2. APPEAL AND ERROR (§ 1071*)—REPORT OF EVIDENCE-PREJUDICE. Where plaintiffs had not made a timely objection to the sufficiency of the evidence to support the findings, they were not harmed by the court's refusal of a motion to report the evidence, made long after the decision was filed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*] 3. TRIAL (§ 405*)—SUFFICIENCY OF EVIDENCE -OBJECTIONS-EXCEPTIONS-TIME. deeds constitute a cloud upon the plaintiffs' title. The prayer of the bill was for the determination of the title to the 29-foot strip and the fixing of the true line between the lands of the parties. The defendant's answer admitted that the deed given by him to the plaintiffs described a tract measuring intend to sell, nor the plaintiffs intend to buy, 76% feet by 125 feet, alleged that he did not any portion of the 29-foot strip, which was included in the deed by mistake, and asked that the deed be reformed. The case was heard at the October term, 1912, of the superior court, before Chamberlin, J., who found that the description in the deed to the plaintiffs includes a piece of land measuring 29 feet by 76% feet which was not sold to them, that the same was inIcluded in their deed by mistake, that the deed should be reformed so as to correctly describe the premises sold to them, and orLaws 1901, c. 78, § 5, provides that any dered a decree to that effect. Counsel were party aggrieved by the ruling, direction, or judg-notified of the order on December 23, 1912. ment of the superior court, seasonably objecting, may allege exceptions thereto, and Pub. St. January 31, 1913, the plaintiffs filed with the c. 204, §§ 9, 10, declares that the court or jus- clerk the following motion: tice trying a case in equity, if either party requests it, shall give his decision, stating the facts found and his rulings of law. Held, that a request that the facts be reported must be seasonably made, which implies that it be made before the cause is submitted, and, not having "The plaintiffs * the rulings of the trial court, * object and except to said exception state the following reasons: and for First, that said findings are contrary to and not supported by the evidence in the case; second, that said findings are not in accord with the facts in the case and thereto." At the trial, no motion was made for a verdict or decree for the plaintiffs. The foregoing motion was treated as a motion to reserve the question whether there was any evidence in the case to support the findings of the court, and the court refused to reserve this question and to report the evidence. Any question of law thereby raised was reserved. the law applicable conveyed was described as extending easterly Joseph Madden, of Keene, and Davis & Davis, of Windsor, Vt., for plaintiffs. Charles H. Hersey, of Keene, and Almon I. Bolles, of Bellows Falls, Vt., for defendant. (77 N. H. 263) CHESLEY v. DUNKLEE. JUDGMENT (8 719*)-CONCLUSIVENESS-MAT- In an action for damages for personal intime of the accident plaintiff was defendant's servant, the "matter in issue," which means the essential element of the cause of action, was defendant's negligence and the relation between of master and servant; hence a judgment for the parties, and not the particular relationship defendant, although based on the ground that plaintiff failed to prove the relationship of master and servant, is a bar to a subsequent action, as plaintiff could have alleged the relationship in the alternative, or generally, and, having restricted his grounds of recovery, cannot bring a second action, for that would indirectly allow the splitting of a cause of action, and the judgment disposed, not only of the questions litigated, but of all which might have been litigated. PARSONS, C. J. [1-3] The failure of the plaintiffs to object to the sufficiency of the evidence to authorize the reformation asked for by the defendant before the case was submitted for decision was a waiver of such objection. Head & Dowst Co. v. Breeders' Club, 75 N. H. 449, 450, 75 Atl. 982; Coles v. Railroad, 74 N. H. 425, 426, 68 Atl. 868; Farnham v. Anderson, 74 N. H. 405, 68 Atl.juries, where the declaration alleged that at the 459. The refusal of the court to report the evidence, upon the motion made long after the decision was filed, did no harm to the plaintiffs, for it was then too late to raise the question of the sufficiency of the evidence to sustain the findings. "Any party aggrieved by the ruling, direction, or judgment of the superior court, seasonably objecting, may allege exceptions thereto." Laws 1901, c. 78, § 5. Not having "seasonably" objected, the plaintiffs are not entitled to an exception. The court or justice trying causes in equity "shall, if either party request it, give his decision in writing, stating the facts found and his rulings of law." P. S. c. 204, §§ 9, 10. "It is the facts that are to be reported, and not the evidence." Burnham v. McQuesten, 48 N. H. 446, 451. The statute does not in terms require the request for a report of the facts to be made before the result is announced; but a reason able construction implies that such request must be made before or at the time the cause is submitted. Such is understood to be the universal practice. [Ed. Note.-For other cases, see Judgment, Transferred from Superior Court, Merri- discharged. Case, for negligence. The declaration alleges that the defendant, while constructing a garage, had the control and supervision of the plaintiff and other workmen, negligently failed to furnish the plaintiff a safe place to work, and negligently commanded the plaintiff to work in an unsafe place, whereby the plaintiff was injured. The defense set up is a judgment in the defendant's favor in a prior suit brought against him by the plaintiff to recover for the same injuries. The declaration in that suit alleged that the plaintiff was at work for the defendant for hire, and that the defendant negligently failed to instruct and warn the plaintiff, or to provide a suitable work place, instrumentalities, rules, and fellow servants, whereby the plaintiff was injured. Upon the trial of that suit the jury were specially inquired [4] It does not appear when a report of the facts was requested; but the court, though declining to state the evidence, reports fully the facts. The controversy related to the division line of a tract of land extending from Vine street to Center street. There were buildings on both streets. The plaintiffs had occupied as tenants the buildings on Vine street for about eight years. The division line of occupancy between the tenants of the buildings on the two streets was clearly marked. The parties agreed to a sale of the premises facing on Vine street. Neither party understood that the sale embraced any portion of the Center street property. By mistake in making the deed, the lot of whether the plaintiff was the defendant's settled by the judgment, was the defendant's servant, and were instructed that, if they relation to the plaintiff. The fact that by found he was not, they should return a ver- the course of the trial, or the admissions in dict for the defendant. The jury answered the declaration, this was made to turn on ́the question in the negative, and returned a whether they were master and servant, did general verdict for the defendant, upon which not change the issue or narrow the scope of judgment was entered. The question wheth- what was settled by that verdict and judger that judgment, if properly pleaded, is a ment. Metcalf v. Gilmore, 63 N. H. 174, 187; bar to the present suit was transferred with- Winnipiseogee, etc., Co. v. Laconia, 74 N. H. out a ruling. 82, 65 Atl. 378. Niles & Upton, of Concord, for plaintiff. Martin & Howe, of Concord, for defendant. PEASLEE, J. The plaintiff seeks to maintain the present suit upon the ground that the issue tried in the former action and settled by the judgment therein was only that he was not the defendant's servant, and that a claim of negligence growing out of some other relation of the parties is still open to him. "Matter in issue" means an essential element of a cause of action or a defense recognized by the law; things to be pleaded, as distinguished from those merely proved. In this instance it means the elements of an action on the case for negligence. Those elements are: (1) Relation of the parties; (2) the defendant's failure to use ordinary care; (3) the plaintiff's care; (4) resulting damage. In King v. Chase, 15 N. H. 9, 41 Am. Dec. 675, title was an essential element One question presented by these conten- of the cause of action, but the particular title tions is whether, in an action on the case to was not. Therefore it followed that the esrecover damage for personal injuries caused toppel applied to the former, although only by negligence, the matter in issue is the de- the latter was tried. The plaintiff tried as fendant's negligence in a broad and general much of title as he saw fit to claim. Title sense, or some particular neglect which is was essential, but title by mortgage was not. specially alleged in the declaration. "The Likewise, in this suit for negligence, reladistinction is between facts which, being al- tion of the parties is an essential element, leged in pleading, constitute a good cause of but relation as master and servant is not. action or a good defense, and facts which As pointed out in King v. Chase, if this were are merely evidence-between facts which not so, the plaintiff could have as many trials upon the face of the pleadings are essential as there are relations of which he could find to be established by one party or the other, evidence. If the particular relation or the and facts which upon the face of the plead-precise bit of negligence were the matter in ings are immaterial, and become material issue, the plaintiff might continue to prosonly by the course of the evidence." Metcalf ecute his claim indefinitely. The prevention v. Gilmore, 63 N. H. 174, 187. In this case of such a result is one object of the rule. the good cause of action is set up by an allegation that the defendant negligently caused a stone to fall upon the plaintiff, to his damage. This is all that it is essential to establish. The matters put in issue are the elements of negligence and damage. was no relation between them, not merely that the relation of master and servant did not exist. The plaintiff's right is to try his case once-not once on one theory, and again on another. It is to be presumed, and such is the fact, that some essential element in a cause of this kind was litigated. That element was the relation of the parties. Instead of trying it generally, or upon an alternative theory, it was claimed that the relation arose in a In order to establish negligence, it is es- single, defined way. This method of evisential that the plaintiff show a relation be- dencing a relation having failed, the issue tween himself and the defendant. Garland v. tried was decided against the plaintiff, and Railroad, 76 N. H. 556, 86 Atl. 141, 46 L. R.is is settled between these parties that there A. (N. S.) 338, Ann. Cas. 1913E, 924. The relation may be that of master and servant, or only that of two men working side by side. The particular relation was not the matter in issue in this case. It was merely the evidence by which the plaintiff sought to establish the fact that the conduct of one party was likely to affect the other. This aspect of the case involves the principle of King v. Chase, 15 N. H. 9, 41 Am. Dec. 675. There the suit was for the conversion of a lot of oats. This put in issue the plaintiff's title. The particular title relied upon was a mortgage, which was found to be fraudulent. This did not make the validity of the mortgage the matter in issue. The matter in issue which was settled by that suit was that the plaintiff did not have title to the oats-not that his mortgage was invalid. So whether the plaintiff was injured as a result The plaintiff's claim, that "the issue as to of the breach by the defendant of any duty arising out of the relation of master and servant was not determined by the jury," involves a confusion of ideas. It is true they did not return an answer to this specific question, but they did return a general verdict, and a special verdict which showed that the general one was based upon the failure to prove the relation alleged. The plaintiff saw fit to limit his claim of negligence to a specific relation. Failing in evidence of this, the issue he sought to prove in this way. by the fact that the defendant in the first But this decided the whole issue against him as finally as the conclusion as to the plaintiff's mortgage did in King v. Chase, 15 N. H. 17, 41 Am. Dec. 675, supra: "If that was the only matter in issue, the plaintiff might bring another suit for those oats, against the same defendant, and, relying upon some other title than that mortgage, try the title to the oats over again. Can he do so? Clearly not; and the reason is, that it is his title which has been tried, and he is concluded." suit was a town, which set up a defense not open to the railroad. In the town suit it was incumbent on the plaintiff to prevail upon three issues: obstruction; notice; and his care. In the later suit against the railroad, the issue of notice was eliminated. The issues not being the same, the judgment for the defendant in the first suit did not conclude the second suit, in the absence of evidence that some of the same issues had been settled adversely to the plaintiff in the former suit. Even upon the plaintiff's assumption that he here sues upon a different cause of action, the conclusion must be reached that an esThe plaintiff's claim from the beginning sential element, a "matter in issue," in the has been that the defendant was negligent. present case, was adjudicated in the former In the former trial he sought to reach the suit. But this is not his only difficulty. If conclusion by showing the relation of master this were a different cause of action, he and servant. In his declaration he then limwould be here concluded only as to matters ited his claim to a neglect of duties imposed in issue which were actually litigated or by reason of such relationship. This was were admitted by the pleadings. But if this setting out his claim in detail, instead of is in substance a second suit for the same pleading generally. It may be that this cause of action, then he is barred, not only would compel him to prove the charge as as to what was actually litigated in the for-made, even if a more general declaration mer suit, but also as to everything which would have sufficed. Corey v. Bath, 35 N. H. might have been litigated therein; that is, 530, 547. It may be that a more general the judgment "is an absolute bar to a subse- declaration would have entitled the defendquent action." Metcalf v. Gilmore, 63 N. H. ant to a specification of charges at some 174, 189. stage of the proceedings. Merritt v. Co., 71 The plaintiff argues that the issues made N. H. 493, 53 Atl. 303. But in any event the by his former declaration were: (1) The re- plaintiff could, if he chose, make his declaralation of master and servant; (2) breach of tion so general and his specification so varied a special duty growing out of that relation; as to include both the negligence of a master (3) the plaintiff's care. One fault in this and that of one not a master. In short, the position is that it may not state the whole cause proceeds upon a charge of negligent inof his cause of complaint which was provable jury, not upon a charge of some particular in a single action on the case for negligence. neglect. Winnipiseogee, etc., Co. v. Laconia, There may have been several relations be- 74 N. H. 82, 65 Atl. 378. Upon a charge of tween the parties. He might claim them such injury there has been a judgment all, and prove as many as he could. He against the plaintiff, and he cannot maintain might be doubtful which of two relations another suit for that cause. MacDonald v. existed. He could then state it in the al-Railway, 71 N. H. 448, 457, 52 Atl. 982, 59 ternative, so far as it was necessary to L. R. A. 448, 93 Am. St. Rep. 550. The forstate it at all, and rely upon whichever the mer judgment "concludes the parties, not evidence showed existed. These are evidentiary facts only, and must all be taken advantage of in one suit. An attempt by stating only a part, and later bringing another suit upon another part, is an endeavor to split a single cause of action. As before stated, the rule in King v. Chase, supra, was adopted to prevent such procedure. only as to every matter which was offered and received to sustain or to defeat the suit, but also as to any other matter which might have been offered for that purpose." Metcalf v. Gilmore, 63 N. H. 174, 189. The plaintiff argues that under the specific terms of his declaration he could not recover save for the negligence of a master. If this The cases cited by the plaintiff as illustra- is true, it is because of his own failure to tive of the question present no difficulty. In charge negligence in other respects. He had Meredith, etc., Ass'n v. Drill Co., 66 N. H. the field before him. If he chose to restrict 539, 30 Atl. 1119, the first suit was debt upon the ground he would attempt to cover, it covenant. The defense was an eviction from does not alter the fact that the whole was the demised premises. The judgment settled once open to him. This rule works no injusthat there could be no recovery on the cove- tice to him. If because of accident, mistake, nant. The second suit was for use and occu- or misfortune, or for the reason that new pation, a distinct cause of action depending evidence has been discovered, he ought to upon a different kind of obligation. The have a further trial of his claim against the amendment, which was refused after a trial defendant, relief could have been sought in had been had in the first suit, was not a the former suit. If justice required a new change of allegations merely, but of the form trial, if would have been granted, but only of action as well. In Hearn v. Railroad, 67 in that event. This is the reasonable pro |