Counts in contract and tort may be joined in a declaration on a single cause of action. It does not appear that the counts were not on the same cause of action, or that the amendment was necessary, or had any effect upon the trial or the verdict.
The construction of the written contract is the ascertainment of the fact of the parties' intention from competent evidence. Houghton v. Pattee,58 N.H. 326; Morse v. Morse, 58 N.H. 391. The dam was not leased to the plaintiffs, and the lease does not prove an understanding that the dam was to be kept in repair by them, either for their own benefit or that of the defendants. On the contrary, the limitations of the water right granted to the plaintiffs, and the title, possession, control, and use of the dam retained by the defendants, show an understanding that the defendants were at least to exercise ordinary care in the work of so maintaining the dam as to give the plaintiffs the power demised to them. Whether the true construction is more favorable to the plaintiffs than that, the questions tried, the instructions given to the jury, and the verdict render it unnecessary to inquire. *Page 444
The defendants have not argued the questions raised by the evidence relating to the use of water at Rolfe's mill, and do not claim that Rolfe could continue to use the water at that mill as he had used it before the starch mill privilege was leased to the plaintiffs. They put this part of their case on the ground that for his use, at his mill, of any water when it was not running to waste over the dam, he had the plaintiffs' consent.
The use of the force pump to transport water to a house for domestic purposes, not being necessary for the grist-mill, the defendants' retention of the right of such use is not implied. Smith v. Smith (Grafton, June, 1882); Adams v. Marshall, 138 Mass. 228, 236.
The jury found that the defendants' negligent or wanton waste and diversion of the water compelled the plaintiffs, acting with reasonable discretion, to discontinue the business for which the lease stipulated the leased premises were to be used. The loss of profits being a damage alleged in the declaration, proof of the amount of such loss was competent. Taylor v. Dustin, 43 N.H. 493. The manufacture of starch being the business to which the lease restricted the plaintiffs, and profit being presumably the object of the business, the loss of profit could be reasonably anticipated by both parties, as a damage likely to be caused by such a waste and diversion of the water as would extinguish the business. It seems to be admitted that the measure of damages was not less than the difference between the rental value of the premises with, and their rental value without, the waste and diversion; and the profit of the business was a large, if not the only, element of rental value. Remote and speculative damages were excluded by the instructions given on this point.
Judgment on the verdict.
BLODGETT and BINGHAM, JJ., did not sit: the others concurred.