Lamontagne v. T. W. Harvey Lumber Co.

The judgment in this case must be affirmed. The only question at issue was whether the dealings of the parties in 1887 and 1888 were tried, considered, and included in the verdict and judgment in the former action. Under the theory of the law most favorable to defendant this could only be proven m two ways: First, by showing that the transactions were necessarily included in the issues made by the pleadings in the former action; and, second, by showing that, though not included in the pleadings, the transactions pro and con during those years were in fact investigated and litigated without objection, and submitted to the jury for decision.

It is frankly admitted that the transactions were not included in the pleadings, and the evidence falls far short of showing that they were litigated without objection and submitted to the jury. No word of oral evidence was given with regard to them. The charge of the court does not allude to them. Iu fact, under the charge of the court, the *334jury had no right to consider them. The fact that one or two of the exhibits offered in evidence and taken by the jury to their room contained the items of the transactions of these years in addition to the items which were in issue in the action, would not warrant the inference that those items were included in the verdict. They were fugitive items, foreign to the issues tried and submitted, and not supported by any testimony.

By the Court.— Judgment affirmed.