Meredith Mech. Ass'n v. Am. Twist-Drill Co.

• Citation: 39 A. 330,67 N.H. 450
• Parties: MEREDITH MECHANIC ASS'N v. AMERICAN TWIST-DRILL CO.
• Decision Date: 28 July 1893
• Court: Supreme Court of New Hampshire

39 A. 330

67 N.H. 450

MEREDITH MECHANIC ASS'N

v. AMERICAN TWIST-DRILL CO.

Supreme Court of New Hampshire. Belknap.

July 28, 1893.

Assumpsit by the Meredith Mechanic Association against the American Twist-Drill Company for the use and occupation of a mill from July 1, 1887, to July 1, 1888, and from July 1, 1889, to July 1, 1890. Writ dated September 2, 1891. Plea, general issue, with a brief statement of defense, in substance as follows: (1) The use and occupation for which the plaintiff seeks to recover were under a written and sealed lease, and an action of assumpsit cannot be maintained therefor. (2) The plaintiff heretofore brought an action of debt against the defendant, to recover the rent for the first year mentioned in the plaintiff's present declaration, due by the terms of a lease under which the defendant occupied. In that suit the defendant pleaded it did not owe the sum demanded, or any part thereof, and filed a brief statement that the plaintiff had evicted it from a certain portion of the premises; and upon a trial of the case the jury found as a fact that such eviction had occurred, and returned a verdict for the defendant. After the verdict the plaintiff moved for leave to amend its declaration by adding a count in assumpsit, which was refused, and judgment ordered on the verdict. The defendant says that judgment is a bar to the maintenance of this action for the period from July 1, 1887, to July 1, 1888. (3) This eviction, continued during the term mentioned in the declaration, justified the defendant in abandoning the premises; and it did so abandon all that it was able, and received no beneficial use from any part. (4) The plaintiff, by its breach of the covenant to repair contained in the lease, justified the defendant in abandoning the premises; and it did so abandon all that it was able, and receive no beneficial use from any part. The plaintiff moved to reject the brief statement, and offered to show that the defendant had a beneficial use of the property described in the writ during each of the years named therein. Case discharged.

Mr. Wilson and Bingham & Bingham, for plaintiff.

E. A. & C. B. Hibbard, for defendant.

WALLACE, J. It was settled by a former decision in a case between these same parties that the plaintiff can, under the quantum meruit counts in assumpsit, recover for any beneficial use the defendant had of the premises in question, on the principle laid down in BrittoD v. Turner, 6 N. H. 481,...