Eddy having testified that there was a verbal contract between the Northern Transportation Company and the different lines of railroad between Ogdensburg and Boston, it was competent for him to state what that contract was. It not being in writing, there was no better evidence than the verbal testimony of one who knew what the terms of the contract were. That it did not differ materially from a written contract, which existed at some previous time between the parties, does not alter the case. It was not the contents of the previous contract, but of the existing contract, which he was asked to give.
Whether a foundation was laid for the admission of the copy of the written contract was a question of discretion for the judge who tried the cause, and is not open to revision by this court.
The copy of the contract of 1863 having been put in evidence, the jury could see how far it differed, if at all, from the verbal contract of 1864, as testified to by Eddy; and it was for them to say, upon all the evidence in the case, what was the contract of 1864.
Whether or not, under the general issue, the defendants could dispute the capacity in which they were sued, becomes immaterial.
If it be conceded that, because the defendants are described in the writ as trustees, etc., it is necessary to prove that fact, the parol testimony introduced by the plaintiffs, tending to show that the defendants acted in that capacity, certainly was sufficient in the first instance. The fact was peculiarly within the knowledge of the defendants how this was, and they could easily have disproved it if the fact were otherwise. In the absence of such proof, it was competent for the jury to find, upon the prima facie case made by the plaintiffs, that the defendants were de jure trustees, as alleged.
In an action against a sheriff, or other public officer, it is sufficient to show, prima facie, that he has acted publicly and notoriously in that character. 2 Gr. Ev., sec. 582; 1 ib., secs. 83, 92. When one is sued as executor, his representative character may be shown by proof *Page 44 of such acts of intermeddling in the estate as estop him to deny the title, constituting him what is termed an executor de son tort. 2 Gr. Ev., sec. 343.
But the inquiry in this suit is not whether the defendants were really trustees of certain mortgages of the Northern Railroad, but did they contract with the plaintiff, as alleged in the writ, under the name of such trustees, and fail to perform their contract? The allegation that they were such trustees is merely descriptive of the title or name under which they acted, and, consequently, proof that they acted under such name would sustain the allegation. If the evidence show that the defendants were common carriers, they would be liable to all the duties of common carriers, and it would be immaterial whether they acted in a representative capacity, or as individuals. Barter v. Wheeler, 49 N.H. 9, p. 34.
CUSHING, C. J. The case of Dickinson v. Lovell, 35 N.H. 9, is an authority directly in point to show that the objection to the testimony of Eddy was rightly overruled. It is not easy to see what objection could be raised to the mode of proving the contract between the Northern Transportation Company and the defendants. The witness stated that there was a verbal contract, and that he remembered no difference between that contract and the written one of the year before. The absence of the original contract being sufficiently accounted for, a copy was permitted to be used. The facts which the court found, and upon which the copy was admitted, do not appear. If, then, the question of the exercise of the discretion of the court below were open, it would be impossible for this court to act in the matter, having nothing to act upon.
The defendants are described in the writ as "trustees of the mortgages," etc. It does not appear from the case that they were public officers, or had any recognized public duties to perform. Their private duties as such trustees were of course matters of contract between them and their cestui que trusts. Of these the court could not take judicial notice. They must be proved into the case like any other facts, if they were material to the matters on trial. If these were proved into the case, and appeared to be material, it would make no difference whether the defendants were described as trustees or not. The production of the contract under which they held the road would show their rights and liabilities, without any reference to the particular name by which they were called.
The addition "trustees," c., in the writ was mere descriptio personarum, and, if objected to, could only be so by plea in abatement. The material matter of inquiry, however, in the case was not under what particular description or name they acted, but what they had been doing. This evidence the court very properly admitted, and on this evidence it appeared that the defendants, under the name of "trustees," c., were in possession of a certain railroad known as the Northern Railroad, and had been and were then acting as common carriers, and *Page 45 as such carriers, and in that capacity, had made the contract on which the plaintiffs relied.
The parties seem to have tried this case under the impression that the defendants were public officers, whose rights and liabilities, having been determined in the case of Barter v. Wheeler, must be taken notice of judicially by the court. This, however, was not so. If their situation as trustees gave them any immunities which could be used in defense of this action, that should have been shown by them. But until such proof were made, it was enough for the plaintiffs to show, as they did, that the defendants were in possession of the road, transacting business and holding themselves out as common carriers by the name by which they were described in the writ.
Exceptions overruled.
Judgment on the verdict.