Gage v. Gage

• Decision Date: 25 July 1890
• Court: New Hampshire Supreme Court
• Parties: GAGE v. GAGE.

29 A. 543

66 N.H. 282

GAGE

v. GAGE.

Supreme Court of New Hampshire. Merrimack.

July 25, 1890.

Case reserved from Merrimack county.

Assumpsit by Gage against Gage for use and occupation of land owned by the parties as tenants in common. Case reserved on finding of facts by a referee. Case discharged.

The referee found the following facts: The parties are brothers, and since the land became their property a part of it has been used by both in common as pasture and wood land, and a small lot has been exclusively occupied by plaintiff. With plaintiff's knowledge, and without objection, defendant has occupied the rest, and taken all the crops from it, except a small part taken by plaintiff. Plaintiff was never excluded from occupying, or from taking the products. He has received all he asked for, or attempted to take. If defendant is liable for rent (estimating the use and occupation at the rental value), there would be a balance of $612.42 due from him to plaintiff. There has never been any mutual understanding, or any promise on defendant's part, that he would in any way make any compensation for his occupation of any part of the land or for his use of plaintiff's undivided share. Defendant did not agree to pay plaintiff for either past or future occupation.

W. G. Buxton and Bingham & Mitchell, for plaintiff. D. Barnard and Chase & Streeter, for defendant.

BINGHAM, J. "There is a large class of contracts, called 'implied contracts,' which rest merely on construction of law, and in which there is, properly speaking, no assent of the parties to the terms by which they are bound. What the law looks to in these cases is not the agreement of the parties, but their circumstances or acts; and from their circumstances or acts the law raises the duty and implies the promise by which, in the individual case, the party will be bound. In the case of an express contract, the law measures the extent of each party's duty by the terms to which he has expressly agreed; in the case of an implied contract, the terms are such as reason and justice dictate in the particular case, and which therefore the law presumes that every man undertakes to perform." 1 Chit. Cont. (11th Ed.) 79. "If the forms of common-law actions were adapted to the truth of the case, a defendant could not be held liable in an action of contract except upon proof of an actual contract, either express or tacit But, by a fiction adopted for the sake of the remedy, the law in some instances allows an action of contract to be maintained to enforce a legal obligation or duty which the defendant has never in fact promised to perform. The law in such cases implies a promise, though such implication may be directly against the actual fact, and even against the party's strongest protestations." Eastman v. Clark, 53 N. H. 276, 280. The idea of a contract implied by law is a legal fiction, invented and used for the sake of the remedy, to enforce the performance of a legal duty. Sceva v. True, Id. 627; Kelley v. Davis, 49 N. H. 187; In re Rhodes, 44 Ch. Div. 94. The invention of the fiction is an application of the general principle that requires such convenient procedure to be invented and used as is necessary to furnish complete remedies for the infringement of legal rights. Boody v. Watson, 64 N. H. 162, 171, 178, 179, 9 Atl. 794, and authorities there cited; Iron Works v. Hale, 64 N. H. 406, 14 Atl. 78. If there is a legal obligation, there is a remedy in some form of action. "It has been long settled that if there are cosureties, * * * and the creditor calls upon either of them to pay the principal debt, or any part of it, that surety has a right in this court, either upon a principle of equity or upon contract, to call upon his cosurety for contribution; and I think that right is properly enough stated as depending rather upon a principle of equity than upon contract, unless in this sense, that, the principle of equity being in its operation established, a contract may be inferred upon the implied knowledge of that principle by all persons, and it must be upon such a ground, of implied assumpsit, that in modern times courts of law have assumed a jurisdiction upon this subject." Craythorne v. Swinburne, 14 Ves. 160, 164.

In Doe v. Morrell, Smith (N. H.) 255, a house had been built as a single tenement, with "two rooms on the floor, chimney in the middle, entry front side the chimney, outside door, stairs up to the chambers," and a part of it had been set off on execution, the sheriff and appraisers making partition "by an imaginary line, running through the middle front door, entry, through the stairs, chimney," etc. The plaintiff, deriving title from the levy, owned one part, and the defendant owned the other. The house was old, and the defendant's part became untenantable, was not worth repairing, and was condemned as dangerous by the fire wards, who "ordered it to be repaired (or otherwise rendered not dangerous on account of fire)." The defendant "took down his part to the line, * * * carefully and prudently, doing as little damage to the plaintiff as he could. He * * * sawed through the plate, girt, stairs, boards, etc., but did not take down the chimney." The action was trespass, and the plaintiff recovered damages on the ground that, "from the nature of the thing," the parties must be considered as interested in common in the entry, chimney, stairs, etc., and each "was under an obligation to the other to keep his part in repair, at least so far that the tenement of the other should suffer no injury from want of such repair." On each side of the boundary line there was a community of interest, created, not by contract, but by the common law. In respect to repairs, the community of interest included a mutual obligation and a correlative right; and for the enforcement of such an obligation and the maintenance of such a right the common law of this state furnishes an adequate mode of procedure. If the defendant, instead of demolishing his part of the building, had merely refused to repair it, the plaintiff would have had a remedy in equity, if not at law. Roberts v. Peavey, 27 N. H. 477, 502. Where several own a mill, milldam, or flume, in common or in severalty, when the privilege of the water is owned in common, there is an implied contract between them, running with the land, that each shall bear his portion of the expense of repairs. On this implied contract is founded the statute relating to the repairs of such property. Runnels v. Bullen, 2 N. H. 532, 538; Gen. Laws, c. 141; Fowler v. Fowler, 50 Conn. 256, 257.

In Campbell v. Mesier, 4 Johns. Ch. 334, there was a decree in favor of an owner of a city lot against the owner of an adjoining lot, compelling contribution to defray part of the cost of a party wall built by the plaintiff in place of an old and ruinous one which he had pulled down. It was alleged in the bill that he had been nonsuited in an action at law brought for the same purpose on the ground that he had no remedy at law. In the opinion Chancellor Kent says: "This case falls within the reason and equity of the doctrine of contribution which exists in the common law, and is bottomed and fixed on general principles of justice. * * * The doctrine rests on the principle that, where the parties stand in equali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear the burthen in ease of the rest it is stated in 2 Fitzh. Nat Brev. 162 b, that the writ of contribution lies where there are tenants in common, or who jointly hold a mill, pro indiviso, and take the profits equally, and the mill falls into decay, and one of them will not repair the mill. The form of a writ is given to compel the others to be contributory to the reparations. * * * The doctrine of contribution is founded, not on contract, but on the principle that equality of burden, as to a common right, is equity. * * * In the case before me, the parties had equality of right and interest in the party wall, and it became absolutely necessary to have it rebuilt. * * * Contribution depends rather upon a principle of equity than upon contract. The obligation arises, not from agreement, but from the nature of the relation, or quasi ex contractu; and as far as courts of law have, in modern times, assumed jurisdiction upon this subject, it is, as Lord Eldon said (Craythorne v. Swineburn, 14 Ves. 164), upon the ground of an implied assumpsit The decision at law, stated in the pleadings, may therefore have arisen from the difficulty of deducing a valid contract from the case. That difficulty does not exist in this court, because we do not look to a contract but to the equity of the case. * * * The houses on each side * * * were old and almost untenantable; and it would be the height of injustice to deny to the plaintiff the right of pulling down such a common wall, and of erecting a new one suitable to the value of the lot in the most crowded part of a commercial city. It would be equally unjust to oblige him to do it at his exclusive expense, when the lot of the defendant was equally benefited by the erection, and much enhanced in value."

"The second diversity," says Coke, "is between chattels real that are apportionable or severable, as leases for years * * * and chattels real entire, as wardships of the body, a villelne for years, etc.; for if one tenant in common take away the ward, or the villeine, etc., the other hath no remedy by action, but he may take them again. Another diversity is between chattels real and chattels personal; for if one tenant in common take all the chattels personal, the other hath no remedy by action, but he may take them again. * * * If two tenants in common be of a dovehouse, and the one destroy the old doves, whereby the flight is wholly lost, the other tenant in common shall have an action of trespass; for the whole flight is destroyed, and therefore he (the defendant) cannot in bar plead tenancy in common. * *...