HALLWOOD CO. v. ROLLINS

If evidence in rebuttal contradicts the defendant's claim without alleging new substantive facts, testimony in mere denial thereof is not admissible in surrebuttal as a matter of legal right. Where a machine has been operated by witnesses in the presence of the jury, its operation by counsel in the course of argument, accompanied by comments warranted by the evidence, is not objectionable.

WALKER, J.

It appears that at the trial it was material to determine whether the defendant had begun doing business in his saloon when the plaintiff's agent called on him, and whether he was then using the cash register. Evidence of the existence of these facts had some tendency to show that the defendant was satisfied with his purchase of the register and had not been defrauded by the plaintiff, as he claimed, and it was received in answer to the defendant's evidence upon the issue of fraud. did not constitute a new substantive position on the part of the plaintiff, but merely tended to deny the defendant's claim of fraud. The proffered evidence of the defendant in denial of the plaintiff's evidence was not, therefore, strictly in rebuttal or surrebuttal, and the defendant had no absolute right to its reception at that stage of the trial. Rule of Court, No. 50, — 56 N.H. 589; Rule of Court, No. 45, — 71 N.H. 683; Gerrish v. Whitfield, 72 N.H. 222. The exclusion of the evidence under the circumstances presents no error of law. King v. Bates, 57 N.H. 446, 448. For similar reasons the defendant was not entitled as a matter of legal right to introduce further evidence to show the time of day the plaintiff's agent called on him.

The remarks of the plaintiff's counsel in his argument to the jury and his operation of the machine, authorizing the conclusion that the plaintiff did not defraud the defendant, were, so far as appears from the case, based upon the evidence, and were legitimate.

Exceptions overruled.

All concurred.