Opinion
Decided December 5, 1933.
A verdict cannot be disturbed upon a ground which though deducible from the evidence was not presented at the trial.
ASSUMPSIT, for labor and materials furnished by the plaintiff to the defendant. Trial by jury and verdict for the plaintiff. The defendant subsequently moved that the verdict be set aside upon the ground that "The plaintiff was erroneously permitted to recover the value of plumbing work, not of necessity or mercy, which was performed on the Lord's Day, or Sunday." The motion was denied by Woodbury, J., and a bill of exceptions was allowed. No motions for a nonsuit or directed verdict were made. No instructions were requested nor were exceptions taken to the charge which contained no reference to the right of the plaintiff to recover for work performed on Sunday.
Hurley Connor, for the plaintiff.
Cyprien J. Belanger and Banigan Banigan, for the defendant.
The defendant by his motion sought to set up a defence alleged to have been disclosed by the testimony but not relied upon at the trial. It is well settled under our practice that a verdict cannot be sustained upon grounds not presented at the trial, although deducible from the evidence. Doyle v. MacDonald, 85 N.H. 545, 547; Hawes v. Chase, 84 N.H. 170; Bjork v. Company, 79 N.H. 402, 407; Gage v. Railroad, 77 N.H. 289, 296 and cases cited. A fortiori a verdict cannot be disturbed upon such grounds.
Judgment on the verdict.
Woodbury, J., did not sit.