Willard v. Wing
| Citation | 39 A. 632,70 Vt. 123 |
| Parties | WILLARD v. WING et al. |
| Decision Date | 14 October 1897 |
| Court | United States State Supreme Court of Vermont |
Exceptions from Franklin county court; Ross, Chief Judge.
Action by Lyman E. Willard against Burton Wing. A trustee process was served on the Franklin County Creamery Association, and Susan B. Sowles claimed the funds in the hands of the trustee alleged to belong to defendant. Heard on report of a commissioner. The trustee was adjudged chargeable, and claimant excepts. Reversed, and trustee discharged.
D. W. Steele, for plaintiff.
E. A. Sowles, for claimant.
The principal defendant sold and delivered to the trustee milk which was produced from cows owned by the claimant and managed by the defendant, under an agreement in writing whereby the claimant leased her farm, with certain cows and other personal property thereon, for the term of one year, the defendant agreeing to pay to the claimant one-half of the rents and profits, being share and share alike, after deducting the expenses and taxes on the farm, and each party holding a lien on his undivided share. By this agreement the defendant did not undertake to pay any certain quantity of produce, or a definite sum, as rents and profits. The right of each party to rents and profits was contingent upon there being anything left after paying the expenses and taxes, and in the residue, if any, they were to share alike. In that part of the printed agreement which provides for a reentry, the word "rent" is stricken out, and the words "income and profits" are inserted. The words thus inserted in place of "rent," the words "share and share alike, after deducting the expenses and taxes," and the words "each party to have a lien on his undivided share," indicate that the parties intended that each should own one-half of the produce and products of the claimant's farm and cows, and that they did not intend that the claimant should part with her title to the half, which, by the terms of the agreement, was to be hers. We think the agreement is susceptible of this construction, and that the parties were tenants in common of the milk that was sold and delivered to the trustee. In Aiken v. Smith, 21 Vt 172, the defendant leased his farm to the plaintiff for a term of years, the produce to be divided equally between them; and it was held that they were tenants in common of the produce. The holding in Frost v. Kellogg, 23 Vt. 308, is to the same effect.
It appears from the report of the commissioner that,...
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