Without a contract, express or to be inferred, the plaintiff cannot recover. Kelley v. Davis, 49 N.H. 187, 189, Bundy v. Hyde, 50 N. N. 116; Cook v. Bennett, 51 N.H. 85, 93.
Without the consent of the defendant, the plaintiff could not be permitted to testify, except upon matters to which the testatrix, if living, could not testify. Chandler v. Davis, 47 N.H. 462; Harvey v. Hilliard, 47 N.H. 551; Fosgate v. Thompson, 54 N.H. 455; Hoit v. Russell56 N.H. 559. It does not appear that the plaintiff offered to testify to matters arising subsequent to the death of the testatrix; and no injustice appearing to be done without the plaintiff's testimony, there was no error in its exclusion.
Judgment on the report for the defendant.
CLARK, J., did not sit: the others concurred. *Page 198