J. Leo Johnson v. James K. Learie

• Decision Date: 04 May 1927
• Citation: 137 A. 205,100 Vt. 308
• Parties: J. LEO JOHNSON v. JAMES K. LEARIE ET AL
• Court: Vermont Supreme Court

137 A. 205

100 Vt. 308

J. LEO JOHNSON v. JAMES K. LEARIE ET AL

Supreme Court of Vermont

May 4, 1927

February Term, 1927.

ACTION OF CONTRACT on bond. Plea, general issue. Trial by jury at the September Term, 1925, Washington County, Thompson, J presiding. Verdict directed for plaintiff, and judgment on verdict. The defendant, Otis C. Sawyer, excepted. The opinion states the case.

Judgment reversed and cause remanded.

Raymond Trainor and Paul Gilioli for the defendant Sawyer.

Melvin G. Morse and Theriault & Hunt for the plaintiff.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

SLACK

On September 15, 1921, the plaintiff and the defendants, James K. and Ina B. Learie, made and entered into a certain indenture, the material parts of which are these The plaintiff thereby leased to the Learies the Hardwick Inn so-called, together with certain personal property, for the term of three years commencing on that date, but subject to earlier termination as hereinafter set forth, for an annual rental of $ 2,500, to be paid in monthly installments of $ 208.34, the first installment to be paid at the time the indenture was executed. The Learies thereby agreed, among other things, to pay such rent at the times specified in such indenture, to pay for all electricity used in and about said building, and that, if at any time for the period of sixty days they neglected or refused to pay any installment of rent, or made default in any obligation to be performed by them, the plaintiff might treat the indenture as terminated and, without demand, enter and take possession of the premises. They further agreed to furnish plaintiff, at the time such indenture was executed, a bond signed by themselves and some party financially responsible conditioned for the payment of one thousand dollars, as liquidated damages, in the event that they breached any condition in such indenture that legally entitled the plaintiff to treat the same as terminated. On the same day, the Learies, each as principal, and the defendant Sawyer, as surety, executed and delivered to plaintiff a bond in full compliance with the agreement therefor contained in the indenture.

This action is brought to recover the amount of such bond, the alleged breaches being failure by the Learies to pay the rent and electricity bills in accordance with the terms of the indenture. Sawyer, who alone defends, resists a recovery against him on the grounds that he was released from liability on such bond by an agreement between plaintiff and the Learies, made without his knowledge or consent, whereby the Learies were given an extension of time for the payment of the rent; and that the rent and electricity bills were fully paid by them. Trial was by jury. At the close of all the evidence, each party moved for a directed verdict. The grounds of the plaintiff's motion, in effect, were that the evidence showed a breach of the conditions of the bond by the failure of the Learies to pay the rent while they occupied the premises; by their failure to pay the rent after they quit the premises at the end of the second year; by their failure to pay the electricity bills; that the evidence tended to show a sum due plaintiff largely in excess of the bond; and that there was no evidence tending to support the claim of payment. The grounds of defendant's motion, here material, were that the evidence showed that he was released from liability on the bond in the manner above stated, and showed that the rent and electricity bills had been paid. The court overruled defendant's motion, and granted plaintiff's on all grounds thereof except 2 and 3, which it denied. To the action of the court respecting these motions, so far as it failed to recognize Sawyer's claims, he excepted.

It is urged by Sawyer that the evidence showed that he was released from liability on the bond, and that it made a case for the jury on the question of whether the rent had been paid.

The plaintiff insists that since the grounds of his motion do not appear in the bill of exceptions nor in the transcript, which is, in effect, the bill of exceptions, these questions are not for consideration, and Whitman v. Lowe, 98 Vt. 152, 126 A. 513, is relied upon as supporting this claim. In that case, as in this, the bill of exceptions state that the ruling of the court respecting the motion was excepted to, and the transcript is made con trolling But in that case, as appears from plaintiff's brief in this, the transcript disclosed nothing regarding the motion, while here the transcript shows that the motion was filed, that it was granted, and an exception saved by Sawyer. This was sufficient to save the questions relied upon. Downing et al. v. Wimble, 97 Vt. 390, 123 A. 433.

So we come to the question of whether what took place between plaintiff and the Learies respecting the payment of rent, as appeared from the evidence, operated to release Sawyer. It appeared that plaintiff took certain negotiable notes of the Learies, which represented overdue rent, amounting in the aggregate to considerable more than the bond. All of such notes were payable "on demand after date." Being so payable did they afford an extension of time? Not if they were in effect demand notes, as we think they were,...