69 Vt. 527 | Vt. | 1897
After the expiration of the indenture, reported in Amsden v. Atwood, 67 Vt. 292, the plaintiff, without objection, allowed the defendant to hold over from the date of expiration, to wit, November 1, 1891, to November 1, 1892, and from thence to December 26, of that year, when he gave him written notice that he regarded him as a tenant by sufferance; that the rent would be increased to $600 after January 1, 1893; that the charge for sawing logs would be increased, and that as a condition of defendant’s continuing as his tenant he should not employ men who were personally offensive to the plaintiff. On this state of facts this court held that the defendant’s holding over was such that at the time of the notice of December 26, 1892, he had become a tenant from year to year. Amsden v. Atwood, 67 Vt. 289; Amsden v. Atwood, 68 Vt. 332 The plaintiff now claims that the facts on which that holding was based, are different from those established in the last trial in the county court, in that it now appears that the defendant had paid the rent only to October 1, 1892; and that his failure to pay rent for a full year from November 1, 1891, prevented his tenancy from ripening into a tenancy from year to year. The plaintiff
(2) The plaintiff had no legal right- to require the defendant to discharge La Cross from his employment as a condition precedent to plaintiff’s sawing defendant’s logs, nor had he any right to impose any terms in respect to his employment of help as a condition to his future occupancy of the premises so long as he was legally in possession as a tenant from year to year. No rights in this respect were reserved to the plaintiff in the written lease nor by the implied terms of the tenancy from year to year. Hence the charge of the court on this branch of the case was correct.
(3) Plaintiff’s offer to saw defendant’s logs in the manner he had previously done, made in his notice of December 26, 1892, is to be construed as conditioned upon the payment.
(4) The plaintiff requested the court to instruct the jury that “it was not optional with the defendant to take down his machinery and vacate December 27, 1892, as he did, and claim his future damages for all his loss of profits and value of the lease for the unexpired term and the depreciation in the value of machinery, or either of said elements of damages, but it was his duty to have remained in possession, brought along his logs and had them sawed and tendered the price of sixty cents per hour and rent at $36.48 a month or $109.44 quarterly as stipulated in the contract of April, 1890, and if not accepted, let the court settle the amount legally due.” This request applied to the defendant’s declaration in offset, declaring for damages against the plaintiff growing out of his breach of the contract. The exceptions do not disclose what the charge in full to the jury was on the subject of this request, but assuming that the instruction as requested was refused, there is no error, unless the plaintiff was entitled to have the entire request complied with. The facts now disclosed in respect to this phase of the case, do not differ in legal quality from what they were when the case was here as reported in Amsden v. Atwood, 68 Vt. 332. It was then held the defendant was not bound to bring and tender the logs at plaintiff’s saw, after he had imposed a condition as to his sawing them which he had no right to make, and that the refusal of the plaintiff to saw the logs except on such condition, was a breach of his contract with the' defendant, which excused him from tendering the logs to the plaintiff to be sawed, as a condition precedent to his right of recovery for such breach. The defendant under the circumstances of the case was not bound to tender either the logs to be sawed or the price for sawing them, in order
(5) As bearing upon the question whether the plaintiff recognized and treated the defendant as his tenant instead of a trespasser, after November 1,1891, it was admissible to-show by parol, the course of business between them tending to show that their relations to each other as landlord and tenant were the same after that date as before it. Of this character was the parol evidence admitted, to which the plaintiff excepted, so far as pointed out by his brief.
(6) The defendant has recovered only for the value of the lease for the remainder of the term, and special damages in respect to thirty-eight cords of logs that were in the yard as stock at the time of the breach of the contract by plaintiff, as is shown by the special verdict. The charge properly instructed the jury in respect to the care and diligence the defendant was bound to exercise to prevent loss and damage to himself by reason of plaintiff’s breach of the contract. In respect to the logs, it excluded the element of profit that might have been realized from manufacturing them into chair stock, and limited damages thereon to that arising from their being left on his bands as stock and his being obliged to dispose of them as best he could. This was a proper element of damages. So was the value of the remainder of the term, and both were properly submitted to the jury. 12 Am. & Eng. Ency. Law 697; Eten v. Luyster 60 N. Y. 252; Chapman v. Kirby, 49 Ill. 211. There is no occasion to consider whether the charge to the jury was erroneous in respect to the other grounds of damage claimed by the defendant, as the special verdict cures such error, if there was any.
(7) The remarks of counsel for the defendant in his argument to the jury, to which the plaintiff excepted, were
Judgment affirmed.