Maggart v. Chester

• Decision Date: 27 May 1853
• Parties: Maggart v. Chester
• Court: Indiana Supreme Court

4 Ind. 124

Maggart v. Chester

Supreme Court of Indiana

May 27, 1853

ERROR to the Tippecanoe Court of Common Pleas.

The judgment is reversed with costs. Cause remanded.

H. W Chase, for the plaintiff.

R. C Gregory, for the defendant.

OPINION

Davison J.

Maggart sued Chester before a justice of the peace. The defendant moved to dismiss the suit for want of a sufficient cause of action. Motion overruled and judgment for the plaintiff. The defendant appealed.

In the Court of Common Pleas, the defendant renewed his motion to dismiss, which was sustained, and judgment given for the defendant.

The cause of action alleges that Chester, who is described as guardian of the heirs of Henry L. Doubleday, deceased, entered into an agreement in writing with Maggart, whereby he leased to him a certain piece of ground belonging to said heirs, for the purpose of tilling the same in corn for one year from the 1st of March, 1849, together with a certain dwelling-house belonging to said heirs, where J. Cullum then lived, and also with the privilege of obtaining fire-wood. And in consideration of the lease and privilege aforesaid, Maggart bound himself, in said agreement, to deliver as rent one-third of the corn in the crib, on the 1st of January, 1850. It is averred that the plaintiff performed the agreement on his part; and the breach assigned is, that the defendant had neglected and refused to furnish to the plaintiff the said dwelling-house, &c.

The agreement referred to, was filed as a part of the cause of action. It shows that Chester leased to Maggart a field to be tilled in corn, situated on the north end of the Doubleday farm, containing about thirty acres, for one year from the 1st of March, 1849; and that Maggart, for the use of said field, was to give as rent one-third of the corn-crop, husked and delivered in the crib, which Chester was to furnish in said field. The rent-corn was to be husked and cribbed on or before the 1st of January, 1850. The agreement then proceeds: "The said Maggart is to move into the dwelling-house where J. Cullum now lives, and to have the privilege of fire-wood by using dead timber unfit for rails."

The dismissal of the suit is the only error assigned.

The clause in the lease upon which the questions in this case arise, is as follows: "The said Maggart is to move into the dwelling-house where J. Cullum lives."

It is contended that the language here used did not render it obligatory on Chester to furnish Maggart with a house; that if it amounted to any thing, it was a mere consent or stipulation on his part to move into the house.

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