Mcallister v. Northern Oil Co. Inc.

• Decision Date: 15 February 1949
• Docket Number: No. 1751.,1751.
• Parties: McALLISTER et al. v. NORTHERN OIL CO., Inc.
• Court: Vermont Supreme Court

64 A.2d 31

McALLISTER et al.

v.NORTHERN OIL CO., Inc.

No. 1751.

Supreme Court of Vermont.

Jan. 5, 1949.

Rehearing Denied Feb. 15, 1949.

Appeal from County Court, Washington County; Samuel H. Blackmer, Presiding Judge.

Action of contract in special assumpsit and in general assumpsit with specifications by Owen E. McAllister and others against the Northern Oil Company, Inc., to recover rents under a lease from plaintiffs' assignor to defendant. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Finn & Monti, of Barre, for plaintiffs.

Louis Lisman, of Burlington, for defendant.

Before MOULTON, C. J., BUTTLES, JEFFORDS, and CLEARY, JJ., and ADAMS, Superior Court J.

CLEARY, Justice.

This is an action of contract in special assumpsit, with a second count in general assumpsit and specifications, to recover rents under a written lease from the plaintiffs' assignor, the United States Clothespin Company, to the defendant. Judgment was for the plaintiffs to recover for rent of the premises from July 1, 1940, to Jan. 31, 1947, and the only issue here is whether the findings are sufficient to support the judgment.

The judgment included rent from July 1, 1940, when the defendant ceased paying rent, to February 7, 1941, which was six years prior to the date when the writ issued. The defendant claims that the rent for that period is barred by the statute of limitations. The plaintiffs claim that the applicable statute is that which governs specialties, and not that governing other contracts, and, therefore, that this rent is governed by the eight year statute and the action as to that rent is not barred.

The rule in this state with respect to the statute of limitations is that the action is deemed to have been commenced at the time the writ issues. Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 319-320, 57 A. 104; Peoples Trust Co. of St. Albans v. Billado, 108 Vt. 27, 29, 182 A. 206. The writ in this case is dated February 7, 1947, which is at least prima facie evidence of the date of the issuance of the writ. Glass v. Starr, 113 Vt. 243, 244-245, 32 A.2d 123; Kessler v. Emmell, 115 Vt. 54, 50 A.2d 604. Therefore, it is apparent on the record that if the six years statute is applicable, the rent claimed for the period from July 1, 1940, to February 7, 1941, cannot be collected in this action.

Our statutes provide that actions of contract shall be brought within six years after cause of action accrues but that in actions on specialties the limitation is eight years. P. L. §§ 1645, 1648, V. S. (1947) §§ 1686, 1689.

The plaintiffs, having pleaded that the lease is a specialty, had the burden of proving that the instrument on which they relied was a specialty. Capen v. Woodrow, 51 Vt. 106, at pages 107, 108. In re Estate of Delligan, 111 Vt. 227, at page 237, 13 A.2d 282.

A specialty is a writing sealed and delivered-a contract under seal. Brainard v. Stewart, 33 Vt. 402, 404; Coral Gables Inc. v. Christopher, 108 Vt. 414, 417, 189 A. 147, 109 A.L.R. 474. The contract here in question conveyed an interest in lands and our statute, P.L. § 2592, now V.S. (1947) § 2643, requires that it be signed and sealed by the grantor. P.L. §§ 34 and § 35, V.S. (1947) § 35 and § 36 provide that when a seal of a corporation is required to be affixed to a paper or on an instrument or writing to make it legal and valid, the word ‘seal’ shall include an impression of the official seal made upon paper alone.

The plaintiffs introduced in evidence a certified copy of the record of the lease taken from the records of the clerk of the City of Montpelier where the leased land was situate. It is set forth in full in the findings of fact. The instrument bears a circle over the names of the grantor and its officers who executed the instrument. The instrument states that the parties set their hands and seals to it and that it was signed, sealed and delivered in the presence of two persons whose names appear on it. The court found that the circle represents the corporate seal of the grantor, which was the plaintiffs' assignor and found rent due from July 1, 1940, to January 31, 1947.

The defendant argues that there was no evidence whatsoever of the character of the instrument or that the circle on it represented an impression of the official seal of the grantor.

But the only question raised by the bill of exceptions is whether the findings support the judgment. So the question whether the evidence supports the findings is not before us. Duchaine v. Zaetz, 114 Vt. 274, 276, 44 A.2d 165; Campbell v. Ryan, 112 Vt. 238, 239-240, 22 A.2d 502; Levin v. Rouille, 110 Vt. 126, 130, 2 A.2d 196; Bank of Canada v. Girard et al., 100 Vt. 117, 119, 135 A. 497; Pierce v. Torrey, 101 Vt. 366, 367, 143 A. 543. The findings were sufficient to support the judgment for the rental period from July 1, 1940, to February 7, 1941.

The defendant claims it is not liable in this action for occupation of the premises after July 1, 1943, when the lease terminated because the plaintiffs cannot recover except under the lease.

The lease provides as follows: ‘The party of the second part has the right and option to continue this lease for an additional term of five years from and after July 1, 1943, upon the same terms and conditions as herein stated except that the monthly rental for said second five years shall be at the monthly rental of Fifty dollars. And in the event of such extension the right of removal of buildings, tanks and structures by the second party shall exist for the period of thirty days after the term of the additional five year period. In the event said second party decides to accept the lease of said premises for the additional term of five years he shall notify the first party in writing at least sixty days prior to the first day of July, 1943, of his election to take said premises for the additional term’.

The defendant argues that whether the plaintiffs are entitled to rent after July 1, 1943, all depends on whether the lease gave the defendant an option of extension or an option of renewal, that however it may be in other states, it is well recognized here that there is a distinction between a provision for an extension of a term and a renewal of a term and that the question is determined and settled by the two cases of Quinn v. Valiquette, 80 Vt. 434, 68 A. 515, 14 L.R.A., N.S., 962, and Buckland v. Tarble, 95 Vt. 87, 112 A. 217.

Whether the option was one of extension or renewal the notice was for the benefit of the lessor and could be waived by the plaintiffs and their grantor. McCam v. Bass, 117 Me. 548, 105 A. 130; Wood v. Edison Co., 184 Mass. 523, 69 N.E. 364; Stone v. St. Louis Stamping Co., 155 Mass. 267, 29 N.E. 623. The landlord's consent or acquiescence indicating waiver of notice may be evidenced by any act showing his election. Hobbs & Son v. Grand Trunk Ry. Co., 93 Vt. 392, 395, 108 A. 199. There, as here, was long occupancy, unexplained, which the court there said would be evidence of consent. Here we have the deed to the plaintiff given subject to the rights of the defendant and assigning to the plaintiff the grantor's rights to rentals due or to become due. That deed to the plaintiff was after the extended term of the defendant's lease had begun. Here we also have the bringing of this suit by ...