W. C. Mott v. Emile Bourgeois

• Decision Date: 04 October 1938
• Parties: W. C. MOTT v. EMILE BOURGEOIS ET AL
• Court: Vermont Supreme Court

1 A.2d 704

109 Vt. 514

W. C. MOTT v. EMILE BOURGEOIS ET AL

Supreme Court of Vermont

October 4, 1938

May Term, 1938.

Ownership in Products of Farm Rented on Shares---Scope of Action of Account between Owner and Tenant on Shares---Proper Remedy for Failure to Leave Grain and for Removal of Cattle---Unliquidated Damages Recoverable---Insufficiency of Notice of Termination as Excuse for Breach of Tenants' Obligation---Status of Findings Based on Evidence Received after Case Closed as to Particular Matter Involved---Case Remanded for Retrial of Particular Issues Where Evidence Supporting Findings Thereon Improperly Admitted---Findings Held Sufficient to Show Cattle Removed by Tenants---Finding as to Demand for Accounting Sufficient to Support Judgment for Cattle Removed---Finding Construed to Show Demand for Accounting Covering Increase of Cattle---De- tail Required in Declaration in Account---Scope of Exception to Judgment---Allowing Recovery for Cattle Removed Held without Error.

1. Owner of farm and tenant on shares are tenants in common of products of farm, in absence of any special provision modifying their relations.

2. Action of account is proper remedy for adjustment of all controversies arising out of relationship between owner of farm and tenant on shares, and everything growing out of such a contract affecting proper settlement and division may be brought into such accounting.

3. Action of account between owner of farm and tenants on shares was proper remedy under P. L. 1894 and 1900 for failure of tenants to leave certain grain according to agreement and for removal of cattle raised on farm and cattle purchased for benefit of tenancy.

4. Unliquidated damages may be recovered in action of account between owner of farm and tenant on shares.

5. In action of account between owner of farm and tenants on shares, tenants were not excused from obligation under contract to leave certain grain on farm by fact that only four months' notice of termination was given though relation between parties had become tenancy from year to year through holding over, requiring six months' notice, where they acquiesced in notice given and surrendered farm.

6. In such action, court could in its discretion have reopened case at adjourned hearing to receive evidence on certain matter when plaintiff had rested except with respect to another matter, provided that defendants, upon their insistence, were afforded reasonable interval to produce evidence to meet evidence so received, but where case was not reopened and defendants were not afforded such opportunity, court could not base finding upon evidence admitted over defendants' objection and exception that case had been closed as to everything except such other matter.

7. In such action, in order that no injustice might be done, case was remanded for retrial of items on which findings were made based on evidence received after plaintiff had rested except as to another matter without reopening case or giving defendants time to produce rebutting evidence.

8. In such action, allowance of item of damages for cattle either raised by tenants while on farm or purchased for benefit of tenancy and claimed to have been removed by tenants was supported by designation thereof, in recapitulation of items of account forming part of findings as cattle removed, as against objection that there was nothing in the findings to show disposition made by tenants of such cattle.

9. In such action, finding that plaintiff had demanded accounting for his property in possession of tenants was sufficient to support judgment including item for cattle removed by tenants as against objection that defendants as tenants in common were entitled to possession of such cattle so long as they did not dispose of them or otherwise treat them as their own since division of the cattle was mode of accounting contemplated and demand for division was all that was requisite.

10. In such action, finding that plaintiff demanded accounting for his property in possession of defendants was to be construed as showing demand covering all interest which plaintiff had in all cattle on farm and not merely those which were there when it was leased.

11. In such action, it was unnecessary for declaration to specify all items for which defendant was to account, or subject-matter of each item, but only transaction out of which accounting was claimed.

12. In such action, exception to judgment reached every question involved in rendition of the judgment and necessary to its validity, but did not reach back of findings and presented only question whether findings supported judgment.

13. In such action, finding allowing recovery for cattle owned as tenants in common and removed from farm by tenants was without error as against objection raised on exception to judgment that pleadings did not cover unsold items.

ACTION OF ACCOUNT by owner of farm against tenants on shares. Pleas a general denial and plea in set-off in two counts. Trial by court at the September Term, 1937, Chittenden County, Cleary J., presiding. Judgment for the plaintiff. The defendants excepted. The opinion states the case.

Judgment reversed, and cause remanded for a new trial only upon the amounts and values of oats and buckwheat not left upon the farm according to the agreement. Let a new balance of accounts be found.

Chief Justice Powers, having deceased, took no part in the decision of this case.

P. C. Warner for the defendants.

A. Pearley Feen, Louis Lisman and George L. Agel for the plaintiff.

Present: POWERS, C. J., MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ.

OPINION

SHERBURNE

This is an action of account between parties to a contract for carrying on a farm upon shares. Trial was by court, and judgment was entered in favor of the plaintiff, to which the defendants have excepted. The particular exceptions briefed have to do with the allowance of sums for failure to leave certain quantities of oats and buckwheat upon the farm, and for cattle removed from the farm.

It appears from the findings that on April 1, 1929, the defendants signed an agreement by which they took the farm and personal property thereon for one or more years at the halves, and agreed, among other things, to leave as found, 216 bushels of oats and 3 bushels of buckwheat. When they surrendered possession on April 1, 1937, they failed to leave any oats and buckwheat, and removed the cattle which were raised by the defendants upon the farm or which were purchased for the benefit of the tenancy.

The owner of a farm and a tenant on shares are tenants in common of the products in the absence of any special provision modifying their relations. Sowles v Martin, 76 Vt. 180, 56 A. 979; Hunt v. Rublee, 76 Vt. 448, 58 A. 724; Willard v. Wing, 70 Vt. 123, 39 A. 632, 67 Am. St. Rep. 657; Frost v. Kellogg, 23 Vt. 308; Aiken v. Smith, 21 Vt. 172. The action of account is the proper remedy for the adjustment of all controversies arising out of this relationship, and everything growing out of such a contract affecting the proper settlement and division may be brought into such accounting. La Point v. Scott, 36 Vt. 603, 609. In this case it is said that the lessee's claim for damages for the failure of the lessor to furnish the full number of cows provided for in the lease may be brought into the accounting. In Cilley's Admr. v. Tenny, 31 Vt. 401, damages for not hoeing corn and not mending fence were allowed in an accounting as damages growing out of the lease whereby the lessor's profits were diminished. In Joy v. Walker, 29 Vt. 257, the lessee was made to account for failure to leave the amount of hay he found on the farm when he took it. In Albee v. Fairbanks, 10 Vt. 314, where the lessee obtained more than his share of the growth and profits of the farm and stock, it is stated that the usual remedy in such a case is account and that "the defendant may be charged as bailiff of the common goods to account for." By P. L. 1894, an action for an accounting may be maintained by one tenant in common against the other "for receiving more than his just proportion of any estate or interest." In Gates v. Lockwood, 27 Vt. 286, an action of book account brought since the enactment of No. 11 of the Acts of 1852, providing that items of account more properly belonging to the action of account may be tried and adjusted in the action of book account, the defendant had a charge for pickles. These were made by the plaintiff from defendant's cucumbers under an agreement that the plaintiff should have one half for the making, and the defendant the other half, which he never received although demanded. It was held that the plaintiff was liable to account "for receiving more than his just proportion of any estate or interest." By P. L. 1900, the action may be maintained by one or more tenants in common to settle and adjust their accounts and dealings. There can be no...