The plaintiff's claim is not for commissions but for damages for the breach of a stipulation alleged to be part of an implied contract under which the parties did business from October 31, 1908, to January, 1910. The plaintiff contends that the adjudication *Page 499 of the Massachusetts court in 1913 as to what the parties meant in their written contract of 1908 is res judicata in this suit; and the defendant claims that the same judgment conclusively determined that for the period covered by this suit the parties did business under an express written contract which excepted commercial cabs, trucks and taxicabs from the plaintiff's exclusive privilege. The referee has not passed upon the several claims as to res judicata, but finds if the question is open that there was no written contract in existence but that the implied contract under which the parties acted contained this exception. Assuming that for the purposes of this suit it is conclusively determined by the litigation that up to October 31, 1908, taxicabs were included within the plaintiff's exclusive privilege, the parties had the power to except them thereafter as they did in the written contract of 1910. They could do the same under the contract by which they elected to govern their relations up to 1910. Whether they did so or not is a question of fact. The referee's finding from evidentiary facts, abundantly sufficient to authorize the conclusion, that the parties understood that the defendant might sell commercial cabs and trucks including taxicabs to anyone, anywhere, without compensation, commission or liability of any kind to the plaintiff, is a finding that although the parties continued to do business in the same manner as before, they did so upon the understanding that taxicabs were excepted from the plaintiff's exclusive privilege even if it must be found by force of the Massachusetts judgment that up to October 31, 1908, they understood they were included.
Where parties after the termination of a contract proceed in the same manner, without any new contract, there is a presumption that they understand their relations are governed by the terms of the expired contract. New Hampshire Iron Factory Co. v. Richardson, 5 N.H. 294, 295; Chamberlain v. Davis, 33 N.H. 121. But the presumption is one of fact, not law, and may be rebutted. Evidence of continuance in employment or tenancy after the termination of an express contract furnishes a presumption of a continuance of the relation on the same terms in the absence of any other evidence, but evidence of periodical settlements at a greater or a less rate would authorize a finding of a mutual understanding of a change in the price agreed to be paid for service or a rent. The trouble with the plaintiff's position is that the referee, instead of finding the parties acted in 1909 under the terms of the contract as the Massachusetts court interpreted it in 1913, finds they did business with a *Page 500 definite mutual understanding as to the matter in dispute fatal to the plaintiff's contention. The plaintiff sues for breach of a stipulation which the referee finds did not exist. As the plaintiff failed to prove the contract, there was no breach and the defendant is entitled to judgment.
Judgment on the report for the defendant.
WALKER, J., was absent: the others concurred.