ERISMAN COMPANY v. COMPANY, 87 N.H. 483 (1935)

177 A. 409

A.C. ERISMAN COMPANY v. LACONIA FURNITURE COMPANY.

Supreme Court of New Hampshire Belknap.
Decided January 1, 1935.

ASSUMPSIT, to recover the price of a radio set sold by the plaintiff to the defendant. Trial by a referee who found that the plaintiff was entitled to a verdict. Judgment was ordered on the report. To this order the defendant excepted upon the ground that as a matter of law the referee could not, on the evidence before him, “arrive at the conclusion he did reach.”

Transferred by Burque, J.

James A. Broderick, for the plaintiff.

Fortunat E. Narmandin, for the defendant.

PER CURIAM.

The case was submitted to the referee without objection to the sufficiency of the evidence. The defendant’s exception is, therefore, unavailing, for it is an elementary rule that such an

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objection is waived unless taken before the case is submitted to the trier of fact. Hening, N.H. Digest, Tit., Procedure, 1242.

Even if the procedural difficulty were obviated and the assumption adopted that the evidence is fully transferred, the defendant’s position would not be improved. He failed to prove before the referee special term of his contract of purchase upon which he relied as a defence. The referee’s rejection of the defendant’s evidence upon this point presents no question of law.

Exception overruled.