Dieter v. Scott

• Decision Date: 03 October 1939
• Parties: F. J. DIETER v. H. W. SCOTT
• Court: Vermont Supreme Court

9 A.2d 95

110 Vt. 376

F. J. DIETER v. H. W. SCOTT

Supreme Court of Vermont

October 3, 1939

May Term, 1939.

Opinion on motion for remand and new trial filed November 7, 1939. Action for Rent---1. Agent as Witness to Prove Parol Agency---2. Testimony as to Agency Held Conclusion---3. Consideration to Be Given Conclusion---4. Conclusion as Justifying Finding---5. Finding Constituting Conclusion---6. Determining Status As Agent of Lessee or Assignee of Lease---7. Assignment of Lease as Collateral Security---8. Liability of Pledgee for Pledgor's Obligations---9. Liability of Pledgee of Lease for Rent---10. Assignee of Lease for Collateral Security as Agent for Assignor---11. Assignment as Collateral Security May Be Absolute---12. Where Treated as Absolute---13. Assignment of Lease as Collateral Held Absolute---14. Lease Assignable Though Assigns Not Used---15. Provision Requiring Consent of Lessor to Assignment---16. Right of Lessor to Waive Consent Requirement after Expiration of Term---17. Bringing Suit for Rent as Affirmance of Assignment---18. Right of Lessee to Invoke Invalidity of Assignment under P. L. 2599---19. Liability of Assignee of Lease on Covenant for Rent---20. Instrument Treated as Assignment of Lease---21. Newly Discovered Evidence as Ground for New Trial---22. Rule as to Granting New Trial to Party Entitled to Expect Verdict---23. Defendant Held Not Entitled to New Trial under Rule---24. Supreme Court Rule 4, Par. 1, Affidavit by Counsel Required with Motion for New Trial---25. Remanding Cause to Prevent Failure of Justice---26. Provision in Assignment of Lease Held to Create Trust for Payment of Rent---27. Formality of Expression Not Required to Create Such Trust---28. Use of "Trust" or "Trustee" Not Necessary---29. Lessor Held Entitled to Enforce Demand for Rent by Action at Law against Assignee---30. Remand to Prevent Failure of Justice Not Required---31. Lessor Not Estopped from Claiming Rent from Assignee---32. Notice to and Assent by Lessor Not Essential to Creation of Trust.

1. Where it is claimed that an agency has been created by parol the agent is a competent witness to prove his agency and its scope, but he must testify to facts, and not opinions or conclusions.

2. The testimony of the defendant in an action for rent that he acted as agent for the lessee was to be regarded as his conclusion.

3. Although inadmissible, a conclusion of a witness coming in without objection was for consideration by the trial court but could not be given more than its legitimate probative effect.

4. When a witness is permitted without objection to testify to a conclusion which is not the legal result of the facts upon which it is based, the conclusion does not afford justification for a finding.

5. A finding of the trial court in an action for rent that the defend- ant was the agent of the lessee was itself only a conclusion as to the legal effect of the relationship between the defendant and the lessee when it was based upon defendant's testimony that he was such agent and was to be disregarded if inconsistent with other findings which stated facts showing the relationship.

6. The circumstances under which the defendant in an action for rent came into possession of the leasehold premises were controlling upon the question of the capacity in which he acted when the plaintiff claimed that he was an assignee under an absolute assignment and the defendant, that he was the lessee's agent and that the leases were assigned to him as collateral security.

7. An assignment of a lease taken as collateral security, being a pledge, vests in the assignee only a special property, the general property remaining in the assignor.

8. A pledgee is entitled to possession but he does not, by virtue of the transaction, become liable for the pledger's obligations with respect to the thing pledged.

9. The pledgee of leases assigned as collateral security would not merely as a pledgee, be liable to the lessor for the stipulated rent.

10. There is nothing inconsistent in an assignment of a lease for collateral security and an agency on the part of the assignee for the assignor.

11. An assignment stated to be by way of collateral security is not necessarily prevented from being absolute, its intrinsic character being the determinative factor.

12. Where the debt for which a contract is assigned as security exceeds the sums that can be realized during the life of the contract, and the creditor is given authority to collect such sums and apply them to the diminution of his just demand, the assignment must be treated as absolute.

13. Where leases were assigned to secure a debt and nothing was left to be returned to the lessee after all the income during the existence of the leases had been collected and credited the entire interest in the term passed to the assignee as if the assignment were in satisfaction or part satisfaction of the debt.

14. A lease is assignable even if the word "assigns" is not employed therein.

15. A provision in leases requiring the consent of the lessor to assignment, being for the lessor's benefit, might be waived by him and if he did not choose to take advantage of a failure to obtain such consent no one else could question the validity of the assignment on this ground.

16. An assignee of leases who gave the lessor no notice of the assignment could not claim that because the lessor did not know of it during the term of the leases there could thereafter be no waiver by the lessor of the provisions in the leases requiring his consent to an assignment.

17. The act of a lessor in bringing suit for a balance claimed to be due on rent against an assignee of leases after the expiration of the term was to be interpreted as an affirmance of the assignment though he had not given his consent thereto as required by the leases.

18. The invalidity of an assignment of a lease because it did not comply with the provisions of P. L. 2599 could not be invoked on behalf of the assignee to avoid liability for rent thereunder.

19. The words "yielding and paying" the stipulated rent used in leases expressed an implied covenant running with the land, and an assignee was liable thereon, on the ground of privity of estate, where he was in possession and had the right to possession.

20. An instrument, in form, and executed and recorded as, a mortgage of real estate, covering leases, given by the lessee and an assignee and purporting to secure a promissory note signed by the grantors, was treated as an assignment since it could not operate as a mortgage of real estate because the leases, being for terms of years, were personal property and since, viewed as a mortgage of personal property, it was defective in that it did not contain the affidavit required by P. L. 2661.

21. Evidence which was known to a party and within his power to produce at the first trial was in no sense newly discovered so as to warrant the granting of his motion for a new trial on that ground.

22. If upon the main facts in issue, the evidence stands so well that a party may well claim and expect a verdict, such party in asking for a new trial would deserve a different consideration from one who had not been active and efficient in producing such a state of the evidence in his own favor.

23. When the defendant in an action for rent relied upon his own testimony to prove that he was the agent of the lessee and not an assignee by an absolute assignment, the fact that both he (a member of the bar) and his counsel misapprehended the legal effect of the evidence upon this issue was not under the circumstances a sufficient reason for granting a new trial on the ground that the defendant had evidence which would prove he was merely the agent of the lessor under the rule applying when the party seeking a new trial was justified in expecting a favorable decision.

24. A motion to strike off a judgment in Supreme Court and remand the cause so that a new trial might be had was deficient as a motion for a new trial where it lacked the affidavit by counsel required by Supreme Court rule 4, par. 1.

25. The Supreme Court may in its discretion remand a cause to prevent a failure of justice.

26. A provision in an assignment of leases giving the assignee irrevocable authority to collect and use the rents and income from the demised premises for the purpose of paying the rent on the leases was construed as creating a trust of so much of the income as might be necessary to pay the rent, since the intent that the fund should be used for the designated purpose clearly appeared, the object and nature of the trust were shown with sufficient certainty and the beneficiary (the lessor), while not specifically named, was definitely ascertainable.

27. No particular formality of expression was required to create a trust for the payment of rent, of rents and income from leased premises, since the property was personalty.

28. It is not essential to the creation of a trust of personalty that the words "trust" or "trustee" should be used.

29. An assignee of leases under an assignment creating a trust of rent and income from the demised premises for the purpose of paying the rent specified in the leases partially executed the trust by proceeding to collect the income and paying part of the rent, and, when the leases expired and nothing was left but the payment of the balance of the rent, the lessor had the right to enforce his demand by an action at law.

30. A remand to prevent a failure of justice was not required when the party prevailing in Supreme Court would be entitled to prevail even though the evidence claimed to warrant a new trial were in the case.

31. The acceptance of checks signed by an assignee of leases as agent, and the giving of receipts made...