Evidence — Practice. This action had been referred under the statute. The referee reported in favor of the plaintiff, and the defendant claimed the right of trial by jury. The plaintiff introduced the report and rested his case, and no exception was taken to the use of the report in evidence before the jury by the defendant.
The report, being in favor of the plaintiff, shifted the burden of proof, so that it was now incumbent on the defendant to go forward and show that he was not liable.
The verdict, having been ordered by the court, must be set aside, if there was any evidence on behalf of the defendant tending to show that he did not promise.
The evidence tended to show that there was no contract or employment of the plaintiff by the defendant. No interview ever took place between them. There was no evidence of any authority given to Swain to contract on his credit. In making out this part of the case, it was quite necessary and proper that the defendant should show his relations with Swain. If he had knowingly taken the benefit of the plaintiff work and appropriated it to his own use, that would have been evidence of a request. If the plaintiff had offered any evidence tending to show that the defendant had held out Swain as his agent, such evidence of a request would not have been necessary. But no such fact appeared. It was then proper and necessary that the defendant should show that he had not knowingly taken the benefit of the plaintiff's work. This he could only do by showing his relations with Swain, and that he had paid Swain.
I think, therefore, that the evidence objected to was right admitted and, as it tended very strongly to prove that the work was not done at the defendant's request and that the defendant was not liable, the verdict must be set aside. Boston Iron Co. v. Hale, 8 N.H. 363; Martin v. Gt. Falls Manf. Co., 9 N.H. 51.
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