4 Conn. 238 | Conn. | 1822
In this case, I am of opinion, that the court erred, in the admission of the writing exhibited in evidence by the plaintiff; and in the rejection of the testimony, offered by the defendant.
1. The writing was not a lease, but merely an agreement to lease, on a precedent condition, which never took effect.
Whether it was a lease, or an agreement to lease, must depend on the intention of the parties, as it is to be collected from the whole of the written instrument. 1 Bac. Abr. 160, 1. Goodtitle v. Way, 1 Term Rep. 735. Roe v. Ashburner, 5 Term Rep. 163. The words, although a part of them may import a present demise, or a part may imply a future lease, are not conclusive; but the intent in this, as in every other contract, must be eviscerated, by a reasonable construction of all the expressions used. Viewing the writing, not in detached parts, but as a whole, directed to a definite object, I am incapable of entertaining a doubt, as to its genuine intendment. It commences with the phrase, “It is hereby agreed,” and following these introductory words, it next declares, “that said Buell will let to said Cook, the use of the county house,” which words imply, not that he does demise, but that, in future, he will do it; and Cook, having agreed to pay therefor 250 dollars, the instrument closes with a condition precedent; “provided a majority of the county court agree thereto.” This expression, by grammatical, as well as by legal construction, qualifies all the antecedent matter to which it is applicable, and implies, that Buell will, in future, demise, and Cook will pay a specified rent, if the county court give the agreement their sanction. Both these antecedents precede the proviso, without the intervention of any stop, except a
A recurrence to the cases on this subject, is not necessary to extract from them the principle of construction. This is most palpable and indisputable, and has been already expressed. The application of the rule, if any case precisely like
The agreement contained in the above writing was not carried into effect, because it never received the approbation of the county court. The sanction of the court could alone be given, when acting in a body; and the only evidence of their act, on this, as on all other subjects, is the record of their transactions. It has been said, that by the expression, “a majority of the county court,” was meant, the personal approbation of the greater number of the judges. Much may be said on this question, on either side, as stress is laid on the word majority, on the one hand, and on the words the county court, on the other; that is, if the words are tenaciously adhered to, and the spirit and intent of the contract, is abandoned. Waiving a particular discussion, founded merely on the meaning of the words above-mentioned, and declaring it as my opinion, that it is no unusual phraseology, when the determination of a court acting judicially is spoken of, for persons to say, “the majority of the court,” thereby intending to express the thought, that the question was decided in a particular manner, I will place my opinion on a surer ground. The agreement was suspended on the approbation of those, who had right to approve the leasing of the county property, and not of those, who had no such right. Now, who had this right; and in what manner must their approbation be evinced? I answer, the county court; and their record is the only mouth, through which they can speak. To me it seems little less than infatuation to assert, that the property of the county, of every description, is confided literally to the county court; and yet that this is not a united body, deliberating and acting
2. The rejected testimony should have been admitted. The written agreement not having been approved, by the county court, nor any lease of the county-house given by Buell to the defendant, he had right to prove, that he took and retained possession of it under the county, and not under the plaintiff. The title of the plaintiff, I admit, could not be questioned, by the defendant, if the relation of landlord and tenant subsisted between them. This fact was in issue; and the plaintiff was unable to establish it, by the written agreement. What, then, should prevent the defendant from shewing, that he took possession of the county-house under the county, and became their tenant? Strike the written contract out of existence, and inefficacious as it was, it must thus be considered, it left the defendant free to prove, that he did not go into possession under the plaintiff, which he would do effectually, by evincing that he possessed and occupied by permission of the county.
New trial to be granted.