Walter Legier v. William Deveneau

• Decision Date: 07 October 1924
• Citation: 126 A. 392,98 Vt. 188
• Parties: WALTER LEGIER v. WILLIAM DEVENEAU
• Court: Vermont Supreme Court

126 A. 392

98 Vt. 188

WALTER LEGIER v. WILLIAM DEVENEAU

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

ACTION OF CONTRACT. Plea, general issue. Trial by jury in Montpelier city court, Fred L. Laird, City Judge, presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Gelsi Monti for the defendant.

M A. Campbell for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

The action is contract for the recovery of rent and other items embraced in plaintiff's specification. The trial was by jury with verdict and judgment for the plaintiff. The defendant argues among others numerous exceptions to the refusal of the court to charge as requested. These exceptions avail the defendant nothing, for the record wholly fails to show the requests relied upon. Swerdferger v. Hopkins, 67 Vt. 136, 148, 31 A. 153; Niles v. Central Vermont Ry. Co. 87 Vt. 356, 89 A. 629.

The defendant excepted to the failure of the court to charge "respecting the law concerning constructive eviction." The exception is too general to require attention; but, if noticed, it should be held that the case did not call for a charge on the subject of constructive eviction as a defense to the action for rent. The defendant remained in possession of the leased premises to the end of the term. If the acts complained of would have justified the defendant in leaving the premises, which we do not decide, they alone will not support a plea of eviction against the action for rent. Actual abandonment must accompany the circumstances justifying it. If the tenant makes no surrender of the possession, but continues to occupy after the commission of the acts which would justify him in leaving, he will be deemed to have waived his right to abandon, and cannot sustain a plea of eviction by showing such circumstances. There cannot be a constructive eviction without a surrender of possession. It would be unjust to permit the tenant to remain in possession and escape the payment of rent by pleading a state of facts which, though conferring a right to abandon, had been unaccompanied by the exercise of that right. Leiferman v. Osten, 167 Ill. 93, 47 N.E. 203, 39 L. R. A. 156; Keating v. Springer, 146 Ill. 481, 34 N.E. 805, 22 L. R. A. 544, 37 A. S. R. 175; Warren v. Wagner, 75 Ala. 188, 51 A. R. 446; DeWitt v. Pierson, 112 Mass. 8, 17 A. R. 58; Scott v. Simons, 54 N.H. 426; Boreel v. Lawton, 90 N.Y. 293, 43 A. R. 170; Weinstein v. Barrasso, 139 Tenn. 593, 202 S.W. 920, L. R. A. 1918D, 1174; 16 R. C. L. 949, § 457. See Alger v. Kennedy, 49 Vt. 109, 24 A. R. 117; McCall v. New York Life Ins. Co., 201 Mass. 223, 87 N.E. 582, 21 L. R. A. (N. S.) 38.

One item of the plaintiff's specification was a charge for a tire and inner tube sold to one Boudreau. The plaintiff's evidence tended to show that the defendant rented the plaintiff's garage for three months to use as a paint shop. Boudreau was working for the defendant as a painter. He had previously purchased the tire and tube in question of the plaintiff. At the time the lease of the garage was arranged the plaintiff, the defendant, and Boudreau were present; and it was agreed among the parties that the defendant would pay the plaintiff for Boudreau, whereupon the tire and tube were charged to the defendant, and sometime later the plaintiff credited the same amount on Boudreau's account. The charge respecting this item of the specification was not excepted to. The defendant excepted "to the failure of the court to instruct the jury respecting the law concerning novation." The exception does not point out the particular omission complained of and cannot be made the basis of reversible error. Hambleton v. U. Aja Granite Co., 96 Vt. 199, 118 A. 878; Morgan v. Gould, 96 Vt. 275, 119 A. 517.

The defendant offered in evidence a letter from plaintiff's attorney containing an offer of terms of settlement, claiming that it was evidence of the amount due. The letter was objected to and excluded on the ground that it was a proposition of settlement. Upon defendant's asking for an exception, plaintiff's counsel withdrew the objection and the letter was...