65 Vt. 494 | Vt. | 1892
The opinion of the court was delivered by
The defendant is sued as the surviving partner of J. P. & E. O. Tracy. The action is assumpsit, upon the common counts and one special count alleging that, on the 14th day of June, 1882, the plaintiff entered into a contract with the Tracys whereby they agreed to deed to him a certain saw mill and appurtenances, upon the receipt: of two hundred dollars, and a ' mortgage back securing the payment of thirteen hundred dollars ; and that he agreed to purchase the same on these terms; that he paid them the two hundred dollars, entered upon the premises and made large repairs; that they refused to deed the premises, and. on June 13, 1883, entered upon the premises, ousted the plaintiff, and thereby deprived him of the benefit of his payment, and his expenditures, to his damage. The defendant, pleaded the general issue, statute of limitations, and gave notice of special matter in defence. On the trial, the plaintiff sought to recover a payment of $175, of $200, and for expenditures upon the mill for repairs and adding a new water wheel. The contract and arrangement between the plaintiff and the Tracys rested in parol.. The defendant seasonably excepted to any oral testimony to establish the same, and especially excepted to the charge of the court upon the right of the plaintiff to recover the
II. But the $175 stands differently. That sum never came to the Tracys nor enured to their benefit. It was paid to the mortgagor as rent. The plaintiff went into possession of the premises under the mortgagor and held possession under him for the full term for which this money was paid. As tenant he could not dispute the title of his landlord, the mortgagor. He.never was in possession under the Tracys. They did not obtain possession until the plaintiff's possession had been terminated by the re-entry of the mortgagor for non-páyment of the rent. The provision in the lease which gave the plaintiff the right to purchase of the mortgagor by the payment of the Tracy mortgage and other claim resting upon the property, he did not avail himself of. He elected not to purchase. Neither did he pay any of the rent to the Tracys, stipulated in the lease between him and the mortgagor to be paid them. They were not parties to the lease and could not'enforce its provisions and none of the stipulations therein enured to their benefit. Hence the plaintiff could not recover the $175 > as money had and received by the Tracys, and which they held for his benefit when they declined to carry out the unwritten contract for the sale of the real estate. Neither did the plaintiff pay this sum to the mortgagor at the legal request of the Tracys. When he took the lease and paid the $175 to the mortgagor, in January,
III. The recovery for what the repairs and articles of personal property added to the property by the plaintiff while he was lessee of the mortgagor were reasonably worth does not arise out of the original unwritten contract for the sale of the mill between the plaintiff and the Tracys, but, as found by the jury, rests upon another contract in regard to the same property as it came into the hands of the Tracys when and after they took possession as mortgagees. The jury have found that while the plaintiff and Caldwell, who was in possession under him, were in possession of the mill, the plaintiff repaired the old water wheel, added a new one, and added some personal property or fixtures, such as belts and saws ; and that the Tracys, when they refused to carry
Judgment is reversed and the cause remanded for a new trial.