Amsden v. Atwood
Decision Date | 05 December 1895 |
Citation | 68 Vt. 322,35 A. 311 |
Parties | AMSDEN v. ATWOOD. |
Court | Vermont Supreme Court |
Exceptions from Windsor county court; Taft, Judge.
Action by Rollin Amsden against John Atwood. Verdict and judgment were for plaintiff, and both parties except. Reversed.
The plaintiff sought to recover for 89 items, but no question was made in reference to any of them, except those for rent and power under the lease hereinafter mentioned. It appeared that August 19, 1885, the plaintiff and one Loren Atwood entered into a written lease for the use of the premises in question. A copy of this lease appears in the count in offset, which is hereafter given. Loren Atwood entered into possession, and continued to occupy under this instrument until April, 1890, when the plaintiff and the defendant, John Atwood, entered into another written agreement, by the terms of which the former lease was to be extended, in favor of John Atwood, for one year from November 1, 1890, with the option to the defendant of still further extending the lease for a period of five years from November 1, 1891, provided said option was exercised in the manner specified. A copy of this last agreement also appears in the plea in offset, being dated April 1, 1890. By virtue of this writing the defendant entered into the possession of the premises, and continued to occupy them until December 20, 1892. About September 1, 1891, the plaintiff and defendant had a conversation in reference to the continued occupation of the premises by the defendant. The parties were agreed that the defendant then notified the plaintiff that he should not exercise the option of extending the lease for five years. The plaintiff claimed that the defendant was to remain in the possession of the premises as a tenant at will after November 1, 1891, while the defendant insisted that he was to remain as a tenant from year to year. The court submitted to the jury to find whether the oral agreement of September 1st was as claimed by the plaintiff, or whether it was as claimed by the defendant; and the jury found for the defendant,—that he was to continue as a tenant from year to year. By the terms of the instrument extending the lease, the rent was payable in quarterly installments. The defendant occupied, under that agreement, two full years; paying the rent for that term, and from November 1 to December 20, 1892. One of the questions was whether the plaintiff could recover this unpaid rent from November 1st to December 20th; the plaintiff claiming that he could, because the tenancy was at will, and the defendant insisting that he could not, because the tenancy was from year to year, and therefore not terminable at the will of the plaintiff. The original lease also contained a stipulation that the plaintiff should saw the logs of the defendant, in his mill, at an agreed price per hour, which was to be indorsed upon the lease, and this condition was extended by the written agreement of extension. The defendant claimed that this stipulation was binding upon the plaintiff, that the plaintiff had refused to saw his logs, and that ho was entitled to damages on that account. The plaintiff maintained that defendant could not recover under this condition, since, the tenancy being at will, the condition ended with the holding of the defendant. This phase of the case was before the court in 31 Atl. 448, 67 Vt. 289, and it was there held that, upon facts substantially as above described, the defendant had become a tenant from year to year; that his holding would be upon the terms and conditions of the written lease, as modified by the instrument of extension; that, if the plaintiff terminated the tenancy, he could not have the rent from November 1st to December 20th; and that the defendant might recover damages for the failure of the plaintiff to saw his logs. Upon the present trial the plaintiff objected to the admission of all evidence upon the part of the defendant tending to support his plea in offset, upon the ground that the contract therein set up was within the statute of frauds, and the evidence was admitted subject to this exception. The plaintiff insisted that there was no evidence tending to show that he had refused to saw the logs of the defendant, so as to entitle the defendant to maintain an action for a breach of that stipulation in the lease. The court so held, and to this holding the defendant excepted. The evidence of the defendant upon that point was, in substance, that he had in his employ a man by the name of Cross, who was indebted to the plaintiff, and that the plaintiff told the defendant that he must either discharge Cross, or quit the occupation of the premises; that the defendant declined to discharge Cross; that upon getting to the mill on the morning of December 20, 1892, the foreman told him that he had received instructions not to saw any more logs for him without further orders; that the defendant thereupon went to the office of the plaintiff, and asked him whether he was intending to saw any more logs, and the plaintiff, in answer, informed the defendant that he must either discharge Cross, or secure his bill, and that unless he did one or the other be should decline to saw any more logs; that thereupon the defendant notified the plaintiff that he should hold him responsible in damages. The evidence further showed that at the time the defendant had a quantity of logs in the mill yard, and some logs upon the roll way, ready to be sawed, and that be was present for the purpose of assisting in the sawing of the logs, as he usually did, when the foreman of the plaintiff notified him that no more would be sawed. No price for sawing the logs had ever been indorsed upon the lease, but the plaintiff had charged, and defendant had paid, a given price for this service. The first special plea in the offset was as follows:
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