branch of the case were so fully expressed in the opinion of Ladd, J., in Bank v. Smith, supra, that they need no restatement here.

The evidence offered by the defendant to show how much property she had in May, 1892, the date of the note, and how much she had acquired since, was rejected as immaterial. It was wholly irrelevant upon any issue tried. A fact logically relevant may be rejected, if, in the opinion of the trial judge and under the circumstances of the case, it is considered essentially misleading or too remote (Cole v. Boardman, 63 N. H. 580, 581, 4 Atl. 572), both of which things were true of the evidence excluded.

The remaining questions arise from the refusal to give the instructions requested. As between the defendant and Stockbridge, the note was an accommodation note, and subject to the defense of want of consideration as well as of fraud. But as between the plaintiffs and defendant there was a good and sufficient consideration. The case does not The case does not stand differently from what it would if Stockbridge were payee and indorser, and the plaintiffs were indorsees. The note was given, not in payment of a debt due from the defendant to the plaintiffs, but in payment of an overdue note from Stockbridge to the plaintiffs, which was surrendered upon receiving the note in suit. There was no evidence competent for the jury that Stockbridge, in procuring the defendant's signature, was acting as the plaintiffs' agent, and there was no evidence that the defendant understood Stockbridge was acting as agent for any third person. The whole case shows that, in procuring the defendant's signature, Stockbridge was acting in his own behalf; that he was procuring the means for paying his own debt to the plaintiffs. The case is the same as if he had fraudulently procured a loan from the defendant of $1,000, and used the money to take up his overdue note. Excep tions overruled.

tract, purchased from defendant before he was aware of his breach in selling to others.

3. In an action for breach of contract, evidence of prior negotiations which terminated in the contract is not admissible.

4. Where, in an action by the vendee for a breach of contract on a sale of goods, where the vendor agrees not to sell to any one else in the same city, plaintiff claims a loss of profits on goods subsequently purchased of defendant before he was aware of the breach, evidence that plaintiff's agent stated during the negotiations that, if he had the exclusive sale, he would probably sell a larger quantity of the goods, is inadmissible, as it is a mere statement, and shows no contract to sell any other goods than those specified.

Exceptions from Hillsboro county.

Action by the Saddlery Hardware Company against the Hillsboro Mills. From a judgment for plaintiffs, defendants bring exceptions. Exceptions overruled.

Assumpsit for breach of contract. Verdict for the plaintiffs. March 5, 1892, the defendants agreed in writing to sell and ship to the plaintiffs, freight prepaid, 622 blankets, of different styles, at prices specified, and "not to sell plaid blankets to any one else in New York City." Both parties complied with the contract in all respects, except that the defendants sold plaid blankets to parties other than the plaintiffs soon after March 5, 1892. The plaintiffs offered to show by oral testimony that prior to March 5, 1892, the plaintiffs' agent stated to the defendants' treasurer that, if the plaintiffs had the exclusive sale, they would probably be able to sell 3,000 blankets; also, that on September 7, 1892, the plaintiffs, in consequence of orders taken by them after March 5, 1892, purchased of the defendants 275 additional blankets, the order having been contemplated by both parties when the contract of March 5, 1892, was made, and given before the plaintiffs were aware of any breach of that contract, and that the plaintiffs suffered a loss of profits in the sale of these blankets, because of the defendants' breach of the contract in suit. The testimony was excluded, and the plaintiffs excepted. Subject to the plaintiffs' exception, the jury were instructed as follows: "The defendants' agreement not to sell plaid blankets in New York City continued only so long as would afford the plaintiffs a reasonable opportunity to sell their 622 blankets in the usual course of trade. It terminated whenever the 622 blankets were sold, even if they were sold immediately after March 5th; and it terminated at the expiration of a reasonable length of time after that date, whether the blankets had then been sold or not,-that is, such a length of time as would afford the plaintiffs a reasonable opportunity to dispose of the blankets in the usual course of trade, with the exercise of reasonable diligence and skill. What was such reasonable length of time is a question for your determination. The defendants are not liable in this action for any loss the plaintiffs may have suffered in the sale of blankets purchased by them of the defendants after March 5, 1892." The

plaintiffs moved to set aside the verdict as to damages so far as to allow them to show the loss suffered on blankets purchased after March 5, 1892, and before they were aware of any breach of the contract, in suit, and loss of profits on other blankets, the purchase of which was contemplated by the parties while the contract of March 5, 1892, was in force, but was not consummated because of the defendants' breach of contract.

George B. French, for plaintiffs. William W. Bailey, for defendants.

SMITH, J. The exceptions relate to the question of damages, and the damages depend upon the construction of the contract. There is no provision in the contract that the plaintiffs will buy or the defendants sell more blankets at the same or other prices. Whatever either party may have had in contemplation as to further purchases or sales, they came to no agreement or understanding in relation to the matter, and neither could compel the other, respectively, to buy or sell, nor recover damages for his refusal. The fact that two of the blankets were designated as "sample" indicates that the parties had in mind that the plaintiffs might purchase more blankets of those styles. But the entire absence of any stipulation to that effect is conclusive that neither party understood there was a contract for such further purchase or sale.

The agreement not to sell to others is without limitation as to time. There are cases of contracts in restraint of trade, where it has been held that the contract terminated only with the life of the vendor. In Webster v. Buss, 61 N. H. 40, Buss sold his teaming business over a particular route to Webster, and agreed not to interfere with the business. If Webster or his assigns should carry on the business of which he had purchased the exclusive right of Buss so long as the latter might live, it is manifest that a reasonable construction of the agreement required that Buss should abstain from interference so long as the business was carried

on.

It must be assumed that the plaintiffs paid a larger price than they otherwise would, because of the defendants' agreement not to sell to others in the city where they were engaged in selling blankets. The less competition, the greater, ordinarily, would be their profits. Contracts in restraint of trade are not favored in the law, and are not to be extended by construction beyond the fair and natural import of the language used. Smith v. Gibbs, 44 N. H. 335; Bowers v. Whittle, 63 N. H. 147. As the contract not to sell contains no limit as to time, the reasonable construction is that the parties intended it to continue so long as necessary to

protect the plaintiffs from competition in the sale of the goods purchased. If the contract had been not to sell to others in New York so long as the plaintiffs would buy blankets of the defendants, the case would be altogether different from the present. Here was not only no agreement to purchase more blankets, but an entire omission of the quantity and prices of future purchases. The improbability is so great that the defendants would have bound themselves for an indefinite period not to make sales to others in New York, without an agreement from the plaintiffs for the purchase of some definite quantity at a fixed price, that an agreement in restraint, for an indefinite period cannot be read into the contract, within the reasonable rules of construction. It cannot be supposed the parties intended the restraint to last after the necessity for it ceased to exist. Such a construction would be unreasonable. The object of the parties was the prevention of competition. This case, in principle, does not differ from the cases generally in restraint of trade. In Webster v. Buss, supra, the purchaser could not enjoy the full fruits of his purchase unless the vendor refrained from interference so long as he carried on the business. So here the object of the parties-the prevention of competition-required the defendants to refrain from sales to other New York dealers until the plaintiffs could sell, in the ordinary course of business, the blankets which they bought on the faith of the defendants' contract. The true rule was given in the instructions to the jury, to wit, the stipulation not to sell to others in New York continued for such length of time as would afford the plaintiffs a reasonable opportunity for disposing of the blankets in the usual course of trade, with the exercise of due diligence and skill.

The evidence offered by the plaintiffs and excluded related to a conversation prior to the negotiation which terminated in the written contract, in which all prior negotiations were merged, and therefore was properly rejected. An additional objection to it is that there was no agreement for a sale of 3,000 blankets, but a statement merely by the plaintiffs' agent that, if they could have the exclusive sale in New York City, they could probably sell that number of blankets. No time within which they could have sold that quantity, and no price which they would have been willing to pay, seems to have been mentioned. Evidence of the purchase of 275 blankets in September, 1892, was immaterial. They were not included in the written contract. The motion to set aside the verdict must be denied, and the exceptions overruled.

1. Definite monuments, referred to in a deed, control the location of the land conveyed.

2. In trespass quare clausum fregit, where defendant's guilt is dependent on the location of land intended to be conveyed by a deed, evidence identifying the boundaries referred to in the deed, and fixing their location, is admissible.

Exceptions from Merrimack county. Trespass q. c. f. by Michael Bartlett against Arthur La Rochelle. There was a judgment in favor of defendant, and plaintiff excepts. Exceptions overruled.

Trespass quare clausum. Facts found by the court. The plaintiff's close adjoins the defendant's on the south, and the controversy is over the location of the division line. In 1856, John G. Hook owned a tract of land west of High street, in Concord. He divided it into lots, and made a plan of the same, and of Forest and other streets, which he recorded in the registry of deeds. The plan shows the south line of Forest street as straight from Auburn (the second street west of High) to High street. The courses are not given on the plan. Later in the same year he undertook to lay out Forest street on the ground from Auburn to High street. The general direction of High street is north and south, and of Forest street east and west. He put down white-pine stakes, which long since disappeared, to mark the south line of Forest street. In 1885 the city laid out Forest street over substantially the same ground as laid out by Hook. From Auburn street to Valley (the first street west of High, and about midway between High and Auburn) the street is identical with that laid out by Hook. From Valley to High the course deflected 1 deg. 55 min. to the right, carrying the southwest corner of Forest and High streets 12 feet south of the corner as shown on Hook's plan, and that made by him in 1856, if the line he marked upon the ground was straight from Auburn to High street. In 1865, Hook conveyed to Philander Thompson a tract of land at the intersection of Forest and High streets, bounded northerly on Forest street and easterly on High street. Prior to October 3, 1871, Thompson conveyed this tract of land to Jacob B. Rand. Rand then conveyed to William Foley a lot described as follows: "Easterly by High street, seventy-one feet; northerly by Forest street, one hundred and twelve feet; westerly by land of said Rand, seventy-one feet; southerly by land of said Rand, one hundred and twelve feet." December 18, 1871, Rand conveyed to Charles H. Elliott a lot next south of the Foley lot by the following description: "Beginning at stake and stones hereafter to be placed on the westerly line of

High street, fifty feet southerly from the southerly bound of land on the westerly line of said High street, owned by William Foley; thence northerly, on the westerly line of High street, fifty feet, to stake and stones; thence westerly, on the southerly line of said Foley's land, about one hundred and twelve feet, to stake and stones; thence southerly, parallel with the westerly line of High street, about thirty-eight feet, to stake and stones hereafter to be placed; thence easterly, about one hundred and twenty-nine feet, in a straight line, to point begun at." This lot has come, by mesne conveyances, to the defendant. January 15, 1872, Rand conveyed to Benjamin Flanders a lot adjoining the defendant's on the south by the following description: "Beginning at a stake and stones hereafter to be placed at southwest corner of land owned by Charles H. Elliott; thence easterly, on southerly line of said Elliott's land, about one hundred and twenty-nine feet, to the westerly line of High street; thence southerly, on the westerly line of High street, fifty feet to stake and stones; thence south, about sixty-eight and one-half degrees west, one hundred and eleven and a half feet, to stake and stones hereafter to be placed, being corner of land above described and conveyed [another lot conveyed by the same deed]; thence northerly, on the easterly line of said land, thirty-two and a half feet, to stake and stones hereafter to be placed; thence easterly, in a straight line, to the point begun at." This lot has come, by mesne conveyances, to the plaintiff. When Elliott bought there was a bound at Foley's southeast corner, and another at his southwest corner, 71 feet from the south line of Forest street, as now laid out, to which Foley and his successors in title have occupied to the present time. court found that the disputed line was 121 feet south of Forest street, as laid out by the city, and that the defendant was not guilty, and the plaintiff excepted.

Sargent & Hollis and Samuel G. Lane, for plaintiff. Bingham & Mitchell and Benjamin E. Badger, for defendant.

WALLACE, J. To ascertain the line between the plaintiff's and the defendant's lots involves the construction of the deeds of Rand to Elliott in 1871 and to Flanders in 1872. The construction of deeds is the ascertainment from competent evidence of the intention of the parties. Crawford v. Parsons, 63 N. H. 438; Johnson v. Conant, 64 N. H. 109, 136, 7 Atl. 116. The competent evidence, in ascertaining the intent of the parties to a deed, is, in the first instance, the deed itself, and such parol or extraneous evidence as is necessary to apply the descriptions in the deed to the land, and every material fact that will help to identify the person or thing intended, and enable the court to put themselves as near as may be in the position of the parties to the deed. In case any la

tent ambiguity arises, still other extrinsic evidence is admissible in regard to the intent of the parties. Lane v. Thompson, 43 N. H. 320, 324; Tenney v. Lumber Co., Id. 343, 350; Bell v. Woodward, 46 N. H. 315, 331; Swain v. Saltmarsh, 54 N. H. 9, 16. The deed from Rand to Flanders, under which the plaintiff claims, simply conveys a lot 50 feet wide on High street, just south of the Elliott lot, now owned by the defendant, without referring to any bounds which were in existence on the ground at the date of the deed to aid in determining its exact location, but making the north line of this lot the same as the south line of the Elliott lot. The location of the disputed line is to be determined, if possible, from the deed of Rand to Elliott, using only such evidence as is necessary to apply the description to the land. The point of beginning is described as a "stake and stones, hereafter to be placed on the westerly line of High street." At the time the deed was given, there was evidently no mark upon the ground at that corner to indicate this point. But this point is further defined as being "fifty feet southerly from the southerly bound of land on the westerly line of High street owned by William Foley." This calls for a bound on the west side of High, street, at the southeast corner of the Foley lot. The description, having thus defined the point of beginning, continues, "thence northerly, on the westerly line of High street, fifty feet, to stake and stones"; again calling for a bound at the southeast corner of the Foley lot. The fact that this deed twice calls for a bound at this corner as in existence at that time, taken in connection with the fact that the same deed defines other corners of this lot by stake and stones, hereafter to be placed, where there were no bounds, makes it clear that the parties to this deed had in mind a bound then in existence on the earth's surface, by which they intended to fix the northeast corner of the Elliott lot. It appears there was a bound at the northeast corner of this lot, which answered to the call of the deed, in existence at the time the Elliott deed was given. The description continues from this point, "thence westerly, on the southerly line of said Foley's land, about one hundred and twelve feet, to a stake and stones"; calling for a bound at the northwest corner of the lot. It also appears there was a bound at this corner at the time this deed was given which answers to the call of the deed. It does not appear there were any bounds on a line 12 feet further north, where the plaintiff claims this line should be located, which would answer to the calls of the deed, or to which the parties could have referred. have, then, two bounds on the earth's surface in existence when this deed was given which answer to the description of the deed, and define the northeast and northwest corners of this lot, and fix definitely its north line. They were the southeast and southwest corners of the Foley lot, and the line

We

between them was the south line of the Foley lot as then occupied. These bounds and this line can now be determined, because Foley and his successors in title have occupied to them until the present time. The northeast and northwest corners and the north line of the Elliott lot being determined, it is easy to ascertain the other bounds and lines of the lot. As appears by the monuments called for by the deed, the parties intended that the south line of the lot should be where the defendant claims it is.

But the plaintiff says that all these lots were formerly part of a tract of land owned by John G. Hook; that he plotted this tract of land into lots, and laid out streets, among which were High street on the east, and Forest street on the north, of these lots; that, according to the plan, the south line of Forest street was 12 feet further north than it is now; that, in conveying this land, he described the lots on High street as so many feet south of Forest street, according to the plan; and that all these lot lines should be 12 feet further north. But, in the view taken, this does not help the plaintiff. Rand, owning all this tract of land by title derived through mesne conveyances from Hook, first conveyed the Foley lot, fixing its southwest and southeast corners by monuments upon the ground, and then conveyed the Elliott lot, fixing the south line a certain number of feet south of the monuments at the south corners of the Foley lot. This determines the location of the disputed line, and it is of no consequence whether the north line of the Foley lot and the disputed line are located in accordance with the Hook plan or not. The definite monuments referred to in the Rand-Elliott deed control the location. Coburn v. Coxeter, 51 N. H. 158.

The evidence identifying the bounds referred to in the deeds, and fixing their location, was properly admitted. In the view taken, it is unnecessary to consider whether the other evidence was properly admitted or not. Exceptions overruled.

SMITH, J., did not sit. The others concurred.

TILTON V. O'CONNOR. (Supreme Court of New Hampshire. Hillsboro. March 15, 1895.)

EXECUTORS AND ADMINISTRATORS-GRANTING OF ADMINISTRATION-JURISDICTION OF PROBATE COURTS.

Since, by Pub. St. c. 182, § 8, the granting of administration belongs to the judge of probate in the county in which the person deceased was last an inhabitant, the fact that, when the petition for granting administration is filed in the proper county, a petition had previously been filed in some other county, is no objection to a decree appointing an administrator under the former petition.

Exceptions from Hillsboro county,

Appeal by Mary E. Tilton from a decree of the judge of probate appointing Denis F. O'Connor administrator of the estate of Mary E. Kelley, who died July 21, 1893, at East Kingston, while on a visit. She was last an inhabitant of Manchester, where she had real and personal estate. Upon the petition of the plaintiff, one of her heirs, filed September 21, 1893, the judge of probate of Rockingham county appointed one Stearns administrator, on the 11th day of October. September 26, 1893, Hurd, another heir, petitioned the judge of probate of Hillsboro county for the appointment of an administrator. After a hearing upon this petition, the defendant was appointed. The plaintiff alleged, as a reason of appeal, that at the time of the filing of the petition in this proceeding a similar petition was pending in the probate court of Rockingham county. The court affirmed the decree, and the plaintiff excepted. Exceptions overruled.

Eastman, Young & O'Neill, for plaintiff. Denis F. O'Connor and John P. Bartlett, for defendant.

PER CURIAM. The "granting of administration on the estate of a person deceased shall belong to the judge of probate for the county in which such person was last an inhabitant." Pub. St. c. 182, § 8. The fact that, when the petition for the appointment of an administrator was filed in the probate court of Hillsboro county, a similar petition was pending in the probate court of Rockingham county, is immaterial. Priority in the filing of the petition did not determine the question of jurisdiction. As the decedent was last an inhabitant of Hillsboro county, the probate court of that county was authorized to appoint an administrator of her estate. Exceptions overruled.

SHERIFF-LIABILITY FOR ATTACHED PROPERTY.

Neither trover nor assumpsit can be maintained against a deputy sheriff to recover the value of crops attached while they were growing, and destroyed, without the officer's fault, before sale.

Exceptions from Merrimack county.

Trespass by Robert McConnell against Stephen H. Flanders. From a judgment in favor of defendant, plaintiff excepted. Exceptions overruled.

Trespass, with a count in trover, for the plaintiff's crops, attached in a suit against him by the defendant as a deputy sheriff, the greater part of which were destroyed without

and not in assumpsit.

2. Gen. Laws, c. 162, §§ 8, 9, render railroad proprietors liable for damages to property by fire from their engines, and authorize them to insure property, situate along the line of the road, exposed to such damage. Held, that such statute did not impose a liability on a railroad for merchandise destroyed by fire, in its freight house, belonging to a consignee, but applied only to property in the control of others along its line.

3. Where merchandise shipped over a railroad was placed in the company's freight house on reaching its destination, and the owner removed a part of it on the day of its arrival, and the remainder was destroyed by fire six days thereafter, the railroad was not liable as a common carrier, since such liability terminated on the expiration of a reasonable time for delivery after notice of arrival.

Action by J. Welch & Co. against the Concord Railroad. Judgment for defendants.

Assumpsit to recover the value of a hogshead of molasses destroyed by a fire caused by the defendants while in their freight house at Suncook. Facts found by a referee: The molasses was brought over the defendants' road and placed in their freight house May 4, 1887. It was destroyed by fire May 10th. Some sugar came with the molasses, and was removed by the plaintiffs on the night of its arrival; also, another hogshead of molasses, which was removed some time before the fire. The plaintiffs did not obtain permission to have the molasses remain in the freight house: nor did the defendants object to its remaining there, or request its removal. Other goods of the plaintiffs which came by freight had occasionally remained in the freight house