Gerry v. Kennett , 75 N.H. 564 ( 1910 )

The instruction requested should have been given. It is not claimed by the plaintiff that there was no evidence to which it was applicable, or that it is an incorrect statement of the law in view of the defendant's evidence; but it is argued that the requested instruction was substantially incorporated in the charge which the court gave. Upon the issue whether the parties had established the line between them by parol agreement (Bartlett v. Young, 63 N.H. 265), it was clearly competent for the defendant to show, as bearing on the probability that such an agreement was in fact made, that a surveyor, assisted by the parties, ran the line as claimed by the defendant, that a permanent fence built upon that line has been maintained for many years, and that the parties have occupied their respective lots up to the fence and no farther. The evidence had a direct tendency to show that the parties agreed to the line which the surveyor ran. Their acquiescence would be evidence of an assent or a meeting of minds. Hobbs v. Cram, 22 N.H. 130; Dudley v. Elkins, 39 N.H. 78; Wheeler v. Wilder,61 N.H. 2, 7. The defendant was therefore entitled to have the jury instructed that the acts of the parties after the running of the line by the surveyor and the building of the fence, as indicated by the evidence, tended to prove the establishment of a line by agreement. But the charge as given limited the jury to a consideration of the acts of the parties at the time the line was run by the surveyor "and immediately afterward." If the court meant by this expression that the building of the fence on that line might be considered as some evidence of an agreement, it did not amount to an instruction that the jury might also consider upon that question evidence of the acts of the parties in maintaining the fence for many years and in occupying their lots up to the fence and no farther. The jury would naturally understand from the charge that they were limited in their consideration of the evidence to acts of the parties at the time of and "immediately" after the running of the line. In this view of the case, it is clear that a mistrial might naturally result. Nor can it be said that the error was cured by the general instruction that the jury should consider "everything which the circumstances and the evidence disclose." The court by this remark did not intend, and it is not probable the jury understood they were authorized by it, to extend their inquiry beyond the limit laid down by the court in the previous sentence.

Exception sustained: verdict set aside.

All concurred.