Amsden v. Atwood

Decision Date05 December 1895
Citation68 Vt. 322,35 A. 311
PartiesAMSDEN v. ATWOOD.
CourtVermont 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:

"That the plaintiff, before and at the time of the commencement of this suit, was indebted to the defendant in the sum of one thousand dollars, for that the said plaintiff and one Loren Atwood, at said Windsor, on the 19th day of August, A. D. 1885, by their indenture under seal, made, entered into, and mutually executed a contract, of which the following is a copy: "This Indenture, made this 19th day of August, 1885, between Rollin Amsden, of Windsor, Vt., and Loren Atwood, of Charlestown, N. H., witnesseth that said Amsden, in the consideration of the rents and agreements hereinafter stipulated to be paid and performed by said Atwood, doth hereby lease to said Atwood twenty-five feet in length of the first floor and basement of the north end of his sawmill building, on the east side of Ascutney street, in said Windsor, being the portion of said building now partitioned off on the first floor for box-making, and the same sized room in the basement under it, to be used and occupied by said Atwood for manufacture of chair stock, together with room in the mill yard sufficient to accommodate said Atwood in storage of logs, lumber, and stock of his business. Said Amsden agrees to partition off said section of the basement, and put in a proper floor and windows in the east side thereof, sufficient to properly light the same; to allow said Atwood to use the cutting-off saw in said building, where, and as it now is, when necessary in his business, and, if said Atwood wishes to have a larger or wider belt to run the same, he may, at his own expense, furnish and put them into the place of the saw and belts now in use; also, to saw said Atwood's logs into lumber, as desired, at a price per hour, to be agreed and indorsed hereon, which shall be less than the regular price; also, to lengthen the main shaft in said building, and cany the same into said part occupied by said Atwood, and furnish said shaft with proper driving pulleys to drive said Atwood's machinery; also, to furnish said Atwood with power from the water wheels of said mills sufficient to run in said Atwood's premises three knife turning lathes for turning chair stock, one back saw, and two or three bench saws, and to the amount in all of twenty-five horse power per day of twelve hours, each workday, during the term of this lease, and, if plenty of water for both, said Atwood may run fourteen hours per day, and, when the other machinery in the building is not running, said Atwood may use more than twenty-five horse power, if desired, during the hours aforesaid, and said Atwood shall have the first right to power from said water wheels to amount of said twenty-five horse power; but said Amsden is not to be held responsible for failure to furnish said power caused by unavoidable accident. To have and to hold said granted premises, rights, and privileges for the term of five years from the first day of October, 1885, for the rent of four hundred dollars per year, payable in equal quarterly installments of one hundred dollars each, on the first days of January, April, July, and October each year during said term; the first installment being payable January 1st, 1886. Said Amsden further agrees to forthwith build a dry house, proper and sufficient for said Atwood's use in his business, as near said mill as he can, and not affect the rate of insurance thereon, and allow said Atwood to use same during said term for the rent of eight per cent. per year on the actual cost of said dry house; said eight per cent. to be paid in equal quarterly installments at the time with the rent of the rooms in the mill; said Atwood to furnish and put in place at his own expense all heating apparatus and piping required, the same to be put up with care; and said Atwood has the right to remove all fixtures put in said mill building or dry house by him during said term, at the expiration of this lease. It is further agreed that if, by reason of dry weather, water should fail so that said Amsden cannot furnish sufficient power to run any part of said Atwood's machinery, then, while said lack of power exists, the rent above...

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28 cases
  • Fred v. Perkins v. Vermont Hydro-Electric Corporation
    • United States
    • Vermont Supreme Court
    • 2 Octubre 1934
    ... ... Powell , 99 Vt. 244, 248, 131 A. 10); that a tenancy ... at will had ripened into a tenancy from year to ... [177 A. 654] ... year ( Amsden v. Atwood , 68 Vt. 322, 333, ... 35 A. 311); that a certain provision in an insurance policy ... had been waived by the insurer ( Mellen v ... ...
  • Perkins v. Vt. Hydro-Elec. Corp.
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    • 2 Octubre 1934
    ...Garage Co. v. Powell, 99 Vt 244, 248, 131 A. 10); that a tenancy at will had ripened into a tenancy from year to year (Amsden v. Atwood, 68 Vt 322, 333, 35 A. 311); that a certain provision in an insurance policy had been waived by the insurer (Mellen v. U. S. Health, etc., Ins. Co., 85 Vt ......
  • Auer & Twitchell v. Robertson Paper Co.
    • United States
    • Vermont Supreme Court
    • 9 Noviembre 1920
    ...274, 139 P. 671. The rule finds support in our own decisions. Fletcher v. Cole, 23 Vt. 114; Preble v. Bottom, 27 Vt. 249; Amsden v. Atwood, 68 Vt. 322, 35 A. 311; Emack v. Hughes, 74 Vt. 382, 52 A. The latter case is perhaps the most in point. The plaintiff sued for damages for breach of a ......
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    ...by written instrument, a requirement already imposed by the Statute of Frauds. See 12 V.S.A. § 181(5); 27 § 302; Amsden v. Atwood, 68 Vt. 322, 332-33, 35 A. 311, 314-15 (1895) (oral agreement to extend a lease is invalid because it violates the Statute of Frauds). As a result, it is simply ......
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