Pearson v. Wheeler

I. The exception to the third, fourth, fifth, and sixth questions and answers in the deposition of George A. Eddy was properly overruled. The witness swore positively to the existence of a verbal contract, in July, 1864, between the Northern Transportation Company and the line of railroad between Ogdensburg and Boston. As nothing appears to the contrary, it is to be presumed that what the witness stated was within his knowledge, and that his knowledge was derived from proper sources.

II. Nor do we perceive any objection to the introduction of a copy of the written contract of 1863; and our attention is not called to any objection by the counsel for the defendants. The two contracts were connected together by the testimony of the witness Eddy, and a sufficient foundation was laid for the introduction of secondary evidence of the existence and contents of the written contract.

III. It was sufficient to show that the defendants acted as trustees of the mortgages to secure the payment of the bonds of the road, and had the control and management of the road; it was not necessary to show that they were actually such trustees. Berryman v. Wise, 4 T. R. 366; Cross v. Kaye, 6 T. R. 663; M'Gahey v. Alston, 2 M. W. 210; James v. Brawn, 5 B. Ald. 243; Dunlap v. Waldo, 6 N.H. 452; State v. Butman, 42 N.H. 494; Carr v. Dodge, 40 N.H. 409; Pierce v. Richardson, 37 N.H. 309; Tucker v. Aiken,7 N.H. 113; Johnston v. Wilson, 2 N.H. 202; Blake v. Sturtevant,12 N.H. 573; Bean v. Thompson, 19 N.H. 290; Baker v. Shephard, 24 N.H. 208.