Brezinski v. Tyler, 1082.
| Decision Date | 04 May 1948 |
| Docket Number | No. 1082.,1082. |
| Citation | 59 A.2d 221 |
| Parties | BREZINSKI et al. v. TYLER et al. |
| Court | Vermont Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Rutland County Court; Blackmer, Judge.
Action by Jake Brezinski and another against Clarence E. Tyler and another based on the common counts in assumpsit, wherein an amendment was allowed declaring on the breach of a promise to give plaintiffs possession of property. Judgment for the plaintiffs, and both parties bring exceptions.
Judgment reversed and cause remanded.
Bloomer & Bloomer, of Rutland, for plaintiffs.
Lawrence & O'Brien, of Rutland, for defendants.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
On February 19, 1947, the defendants conveyed to the plaintiffs a parcel of land in West Rutland by warranty deed containing covenants of title and right to convey, of warranty, and against encumbrances. It also provided that ‘the grantees are to have possession on April 3rd, 1947’. The consideration was $2700 which was paid in full upon delivery of the deed. The house on the land conveyed was occupied then and thereafter by tenants, one in possession of the ground floor and the other of the second floor. Such occupancy was known both to the plaintiffs and the defendants. On the next day, at the request of the plaintiff Jake Brezinski, the following letter, hereinafter referred to as the letter of Feb. 20, was written and delivered to him by the defendant Clarence E. Tyler:
West Rutland Vermont
Dear Sir:
As you will recall, when I sold the property to you I reserved the right to retain possession of the property until April 3, 1947. Since that time it has developed that I will not require the possession of the premises until April 3, 1947 and I hereby waive and and all rights that I might have by virtue of said reservation and you may take possession as of this date insofar as I am concerned. Therefore, consider yourself to be the true and lawful owner and possessor of the premises as of today.
Very truly yours,
Clarence E. Tyler.'
The tenants refused to permit the plaintiffs to take possession of the premises and on April 29, 1947, the plaintiffs brought this action in county court seeking damages from the defendants. Trial way by court without a jury. Findings of fact were filed and judgment for the sum of $81 was rendered for the plaintiffs. The case is here on bills of exceptions of both parties.
The declaration was originally on the common counts in assumpsit only without specifications, but at the trial an amendment was allowed declaring on the breach of a claimed promise and undertaking by the defendants to give the plaintiffs possession of the property on April 3, 1947. A discussion followed the allowance of the amendment, concluding as follows:
‘Mr. O'Brien: As I understand the position of the plaintiff now, the present complaint is in substitution for the declaration in common counts which was previously filed.
‘Mr. Bloomer: That is right.
By their silence then and thereafter during the trial both parties acquiesced in the court's statement and it became the law of the trial. Perkins v. Vermont Hydro-Elect. Corp., 106 Vt. 367, 417, 177 A. 631. The defendants answered the amendment, pleading general denial and surrender of the premises to the plaintiffs as of Feb. 20, 1947.
The following are findings made by the court relative to the covenants contained in the deed:
‘4. The deed contained the following provisions: (a) The grantees are to have possession on April 3, 1947. (b) And we the said grantors, Clarence E. Tyler and Florence E. Tyler, for ourselves and our heirs, executors, and administrators, do covenant with the said grantees Jake Brezinski and Anna Brezinski, and their heirs and assigns, that until the ensealing of these presents we are the sole owners of the premises, and have good right and title to convey the same in manner aforesaid, that they are free from every encumbrance; We, Clarence E. Tyler and Florence E. Tyler, do hereby engage to warrant and defend the same against all lawful claims whatever.
‘8. This letter (of February 20) did not constitute a waiver by the plaintiffs of their rights under the covenants noted in number 4 above.
It appears therefrom that the court's decision was based upon a breach of covenant.
But the provision of the deed regarding possession was not a covenant. It contained no express promise or agreement and the language used was not appropriate for a covenant. It was placed after the granting clause in the deed (pltff's ex. 1) and not with the...
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