Sabourin v. Woish, No. 525

Docket NºNo. 525
Citation85 A.2d 493, 117 Vt. 94
Case DateJanuary 02, 1952
CourtUnited States State Supreme Court of Vermont

Page 493

85 A.2d 493
117 Vt. 94
SABOURIN et al.
v.
WOISH et al.
No. 525.
Supreme Court of Vermont.
Jan. 2, 1952.

Page 494

[117 Vt. 96] Sylvester & Ready, St. Albans, for plaintiff.

Page 495

John H. Webster, Swanton, for defendant.

Before [117 Vt. 94] SHERBURNE, C. J., and JEFFORDS, CLEARY and BLACKMER, JJ.

[117 Vt. 96] SHERBURNE, Chief Justice.

This is an action of tort in two counts. The first count alleges, among other things, that the defendants occupied a house of the plaintiffs from about April 1, 1947, to about October 1, 1949, whereby it was the duty of the defendants, while occupying the property as tenants of the plaintiffs, to occupy the same in a good husbandlike manner, commit no waste, permit no waste to be committed, to pay the plaintiffs a fair and reasonable compensation for the use of the property, and to vacate the same upon being requested by the plaintiffs, and upon vacating to leave the same in a good state of repair. In this count the plaintiffs seek to recover (1) for injuries to the house resulting from the unhusbandlike and negligent occupancy of the defendants, (2) for expense of legal proceedings to gain possession of the property because of the wilful refusal of the defendants to vacate the same on or before October 15, 1948, pursuant to a notice given to the defendants by the plaintiffs on August 6, 1948, and (3) for being deprived of the use, benefits and profits that would have accrued to the plaintiffs during the last ten months prior to October 1, 1949. The second count alleges, among other things, that the plaintiff H. B. Sabourin on December 3, 1948, instituted a justice ejectment action against defendant Chester A. Woish, returnable to the Franklin municipal court, that a hearing was had thereon on July 15, 1949, and on August 10, 1949, the plaintiff therein had judgment for the possession of the premises and one cent damages and costs, and that thereafter the defendants refused to vacate the premises, refused to pay the plaintiffs a fair and reasonable compensation for their use, and so occupied same that the property became injured. This count seeks damages similar to those sought in count 1 accruing subsequent to July 15, 1949, and August 10, 1949.

[117 Vt. 97] In their answer the defendants plead the general denial, and that the plaintiffs are barred from maintaining this action (1) by the judgment in the justice ejectment action; (2) by the action of contract brought by said H. B. Sabourin in Franklin county court against said Chester A. Woish, involving the element of rent growing out of the same facts and circumstances as were involved in the justice ejectment action, and resulting in a final judgment for the defendant therein on February 10, 1951; (3) for the reason that the entire claim and the damages sought to be recovered in this action arose from the same breach that was adjudicated in the justice ejectment action, and that said H. B. Sabourin cannot maintain this action without splitting his cause of action; and (4) by the elections made by said H. B. Sabourin in the maintenance of the justice ejectment action, the maintenance of a trespass action in Franklin county court, as indicated by a writ dated April 21, 1949, and discontinued on September 27, 1949, and said contract action, which necessitated the allegation of facts or the assumption of positions inconsistent with, or repugnant to, the maintenance of this action. As to all the matters above mentioned the plaintiff Louise D. Sabourin and the defendant Constance M. Woish are alleged to be nominal parties and so connected in interest or liability with the other parties, that any judgment rendered may be regarded for both plaintiffs or both defendants, as the case may be, and any election made by plaintiff H. B. Sabourin may be regarded as made by both plaintiffs.

The plaintiffs filed a lengthy replication, in which they allege that they ought not to be barred by reason of anything alleged in the answer, and set forth reasons why they should not be barred. The cause...

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12 practice notes
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...rights, and attempted to choose the one to which he was not entitled is not enough to prevent his exercising the other, if entitled to it. 117 Vt. 94, 98, 85 A.2d 493, 496 (1952) (citations omitted); see also Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507, 509 (......
  • Kellogg v. Shushereba, No. 11–355.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 6, 2013
    ...must respond for gains prevented as well as for losses sustained, so far as the same are sufficiently alleged and proved.Sabourin v. Woish, 117 Vt. 94, 99, 85 A.2d 493, 497 (1952); see also Capital Garage Co. v. Powell, 98 Vt. 303, 306–07, 127 A. 375, 377 (1925) (holding that statute that i......
  • Van Ruymbeke v. Patapsco Indus. Park, No. 326
    • United States
    • Court of Appeals of Maryland
    • April 13, 1971
    ...wrongful act are recoverable.' Id. at 309, 127 A. at 378. (emphasis added). In the subsequent Vermont case of Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493 (1952), also cited by the Van Ruymbekes, the court 'Mesne profits at common law were the pecuniary gains and benefits received by the diss......
  • Bisson v. Reppel, Civil Action No. 2:13-cv-245
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • February 12, 2014
    ...a tenant's duties include a common-law obligation to "commit no waste" and to "permit no waste to be committed." Sabourin v. Woish, 117 Vt. 94, 96, 85 A.2d 493, 495 (1952); see also Restatement (Second) of Property: Landlord and Tenant § 12.2 & cmt. a (1977). "Waste" can include either a "p......
  • Request a trial to view additional results
12 cases
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...rights, and attempted to choose the one to which he was not entitled is not enough to prevent his exercising the other, if entitled to it. 117 Vt. 94, 98, 85 A.2d 493, 496 (1952) (citations omitted); see also Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507, 509 (......
  • Kellogg v. Shushereba, No. 11–355.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 6, 2013
    ...must respond for gains prevented as well as for losses sustained, so far as the same are sufficiently alleged and proved.Sabourin v. Woish, 117 Vt. 94, 99, 85 A.2d 493, 497 (1952); see also Capital Garage Co. v. Powell, 98 Vt. 303, 306–07, 127 A. 375, 377 (1925) (holding that statute that i......
  • Van Ruymbeke v. Patapsco Indus. Park, No. 326
    • United States
    • Court of Appeals of Maryland
    • April 13, 1971
    ...wrongful act are recoverable.' Id. at 309, 127 A. at 378. (emphasis added). In the subsequent Vermont case of Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493 (1952), also cited by the Van Ruymbekes, the court 'Mesne profits at common law were the pecuniary gains and benefits received by the diss......
  • Bisson v. Reppel, Civil Action No. 2:13-cv-245
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • February 12, 2014
    ...a tenant's duties include a common-law obligation to "commit no waste" and to "permit no waste to be committed." Sabourin v. Woish, 117 Vt. 94, 96, 85 A.2d 493, 495 (1952); see also Restatement (Second) of Property: Landlord and Tenant § 12.2 & cmt. a (1977). "Waste" can include either a "p......
  • Request a trial to view additional results

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