Evidence that a party declared that he would not do a certain act is not admissible for the purpose of proving that he did not afterwards do that act.
[fn*]CUSHING, C. J. [fn*] SMITH, J., did not sit.
In Bell v. Woodward, 47 N.H. 539, it was held that "A's declaration, soon after the purchase of a farm," that he bought it for B, "is not evidence to show that A did not afterwards live upon the farm and carry it on." The learned judge who delivered the opinion of the court said, — "The testimony of J. B. F. Woodward was irrelevant. The purpose for which Joshua Woodward bought the farm has no legal tendency to show what he did or did not do with the farm after the purchase."
This case is authority, if any authority were needed other than the principles of common sense, to show that the testimony was rightly excluded.
LADD, J., concurred.
FOSTER, C. J. C. C.
The declaration of Banks, as to his intention concerning the breaking and keeping open the road, is immaterial and cannot bind the defendants.
If it were at the time a truthful expression of his intention, non constat that his intention may not have changed during a subsequent period, in which he may have performed his duty under his contract with the town. Non constat, also, that the dereliction of Banks may not have led to the employment by the town of somebody else to perform the same service.
The question was, whether the highway was defective at the time the plaintiff sustained an injury, and not what Banks may have said about his intentions concerning the road before, upon, or after the accident. He was not the agent of the town to bind them by any admission of their liability.
Judgment on the verdict.