95 Vt. 396 | Vt. | 1921
The plaintiffs are Thomas P. Edmunds and William Edmunds, copartners doing business as Edmunds
The premises in question are a basement'in a building owned by one J. IT. Lincoln, who let the same to Thomas Roberts for one year, beginning February 1, 1914, with an option for four years more, or until February 1, 1919.
Roberts went into possession of the premises and exercised his option for the extension of the lease. He installed therein, at his own expense, two bowling alleys, four pool tables, and a restaurant outfit, together with the necessary equipment for operating the alleys and tables. About June, 1918, he sold his entire property in the building to the plaintiffs, who thereafter sublet the premises to one O’Brien, who continued in possession under the plaintiffs until October 5, 1919.
At some time before the plaintiffs took a lease of the property, the Smith Lumber Company, then known as the Chaffee Lumber Company, held a mortgage on said real estate, and was authorized by .Lincoln to look after said property, and from that time forward acted for Lincoln in so doing, collecting the rents and doing such acts as were necessary to be done by the owner of the property in. the management thereof.
The plaintiffs remained in possession of the premises after the expiration of the written lease on February 1, 1919, with the consent of the Smith Lumber Company, acting for the owner as aforesaid. Rent for the month of August, 1919, was paid and accepted on September 5 of that year, and-all previous rent had been paid before that time. A check for the rent for the month of September, sent the Smith Lumber Company by the plaintiffs on September 30, was retained by them and afterwards returned on December 2, 1919.
On September 24 the Smith Lumber Company gave notice in writing to the plaintiffs to vacate the premises at once, owing to the fact that the structure was to have a general overhauling and
In the lease heretofore referred to between Lincoln and Roberts of the premises in question there was a provision reserving the right in the former to put in supporting posts or pillars in the said basement so as to strengthen and support the upper floors of the building. On Sunday, October 5, following said notice to vacate, the defendants, their servants and agents, entered the premises in question without the consent or knowledge. of the plaintiffs, going in through a window in the boiler room of the building to which they had possession, and began the erection of posts to support the upper floors of the building. On the same day they placed a new lock on the door to the basement and took and retained possession of the premises.
The plaintiffs did not again occupy the room, but shortly after January 19, 1920, they took up the bowling alleys and rested them in an inclined position against the posts in the basement of the premises, and, early ini March following, these and all other property of the plaintiffs in the said premises were removed by them. The alleys were taken to and stored in a barn in Poultney, and the pool tables taken to the same town and set up in a pool room.
The plaintiffs tried the case on the theory that there was an oral lease between Burton Smith, acting for the Smith Lumber Company, and the plaintiffs, for the year beginning March 1, 1919, and ending March 1, 1920, with privilege of renewal. This the defendants denied.
The defendants claimed that the plaintiffs had no rights in the premises except such as they acquired by reason of holding over under the old lease, and were, accordingly, tenants at will only.
The personal property of the plaintiffs in the premises was damaged. The alleys were warped and the tables and equipment more or less injured.
After verdict the claim was made for the first time in defence of the action that an oral lease would be only a tenancy at
The defendants bring ten questions on exceptions to this Court. Four of these relate to the testimony of one Arnet Taylor, who was improved by the plaintiffs as an expert witness; four are to the charge of the court; one is to the overruling of defendants ’ motion in arrest of judgment; and one to the admission of testimony.
One of the items involved was the value of the bowling alleys which the plaintiffs claimed the defendants had damaged. The witness Taylor was particularly skilled in the construction and operation of bowling alleys and billiard and pool tables, their equipment and value. No question was made but what he had expert knowledge of the subject-matter and was a competent witness on such subjects. ITe was familiar with the type of bowling alleys and pool tables in question, and had known these particular alleys and tables from the time they were installed until the time of the trial, and had frequently visited the place and seen them in operation, the last visit being in August or September, 1919. ITe gave evidence respecting the value of the alleys and pool tables as of October 4, 1919, basing the same upon his knowledge of the alleys and the assumption that they had been recently redressed and were in first-class condition on said date. He also gave evidence of the value of the alleys when examined by him on March 17, 1920, and assumed that their condition was the same as when removed from the premises in question, which was shortly before the trial.
The plaintiffs were allowed to show that they had sublet the premises by an oral agreement to one O ’Brien for thirty-five dollars a month. The defendants objected on the ground that, if the plaintiffs were holding the premises on an oral lease, they would have no right to sublet without the consent of the Smith Lumber Company or the owners of the premises. It appeared that O’Brien was in occupancy of the premises under an agreement with the plaintiffs for a period of six months under’ which he could purchase the property belonging to the plaintiffs, if he desired, and when plaintiffs received a written lease he was to sublease. This evidence was received without objection, and no claim was made during the trial that the tenancy was terminated by the lease to O’Brien. Further, it appeared that the defendants approved of O’Brien’s occupancy of the premises. The item for damage for loss of use of ten dollars per month over and above the amount the plaintiffs paid the defendants was submitted to the jury in proper instructions without objection or exception, and no claim was made but what, if plaintiffs were entitled to recover, it was a proper element of damáge. This objection is without merit.
The alley beds were seen by the witness at Fair Haven in the basement in question. They had been taken up and cut into two sections and were standing on edge on either side of some posts. The witness described the condition of the beds as “washboardy”, with some scratches and gouges in them, and said one of the beds had warped. The beds had been sawed in two and taken up by the plaintiffs in January, 1920. The evidence was received in connection with an offer on the part of the plaintiffs that they would show that they had done everything possible to preserve the value of the alleys, and that their condition, as seen by the witness, would be connected with their condition when taken from the building. The record shows that there was evidence tending to make good this offer, and the exception is not sustained.
The defendants saved an exception to the testimony of Taylor as to the value of the pool tables as seen by him shortly before he testified, on the ground that their then condition was not due to the acts of the defendants; but there was likewise testimony in regard to those tending to show that their condition was the same as when removed from the premises in Fair Haven, and that this was due to the acts of the defendants. There was evidence that the workmen of the'defendants covered some of the tables with sawdust, shavings, and refuse, and also played on the tables, while in the room at Fair Haven. The objection is without merit.
The question of the authority of Burton Smith to make a lease, as well as to the question of the ratification of the lease, if made by him, by the corporation, was before the court, and exceptions on these points were likewise taken by the defendants. The court charged the jury that authority to act for a corporation may be granted specifically by a vote of its board of directors, or implied from the conduct of the proper officers, or it may be supplied by ratification of the acts themselves, or failure to disavow them after they are known, and submitted the question whether Burton Smith had authority, express or implied, to act, or, if not, whether such acts were ratified expressly or by implication by the corporation.
The directors of the corporation were F. G. Smith, said Burton Smith, and Warren IT.- Smith. F. G. Smith was president, and Burton Smith treasurer.
Burton Smith, as a member of the Smith Lumber Company, generally conducted the business of the company in connection with the premises in question as it related to the plaintiffs. He conducted the correspondence for the company regarding the
It was for the jury to say, under the circumstances, whether Burton Smith had authority to make a lease, express or implied, and whether his actions had been ratified by the directors.
The charge of the court was in full accord with the settled law of this State. Roebling’s Sons v. Barre & Montpelier T. & P. Co., 76 Vt. 131, 56 Atl. 530; Foot v. Rutland & Whitehall R. R. Co., 32 Vt. 633; Bank of Middlebury v. R. & W. R. R. Co., 30 Vt. 159; Conant v. Bellows Falls Canal Co., 29 Vt. 263.
True it is that by the provisions of G. L. 2744, estates or interests in lands created or conveyed without an instrument in writing, signed by the grantor or by his attorney, shall have the effect of estates at will only; and, had the point been made seasonably in this case, it is undeniable that the lease in question must have been treated as having created a tenancy at will. But the exceptions show that no question was made during the trial but that, if an oral agreement was made between the plaintiffs and the defendants, as the plaintiffs claimed, there was a valid lease for one year, and that the plaintiffs in such case would be entitled to possession until the end of the year. This view of the law was adopted by the court after specific statements by counsel for
The defendants argue that their request to charge that the plaintiffs were tenants at will brought before the court the question that is involved in the motion in arrest, but this is not so, for the record shows that the statute in question was not then called to the attention of the court, and that the point as then made related only to holding over after the expiration of the former lease.
The defendants finally made claim that the special verdict that there was a valid oral lease for one year furnished the basis for the assessment of damages, and that the judgment rendered thereon was therefore based upon an erroneous verdict, which was contrary to law.
It is well established that a motion in arrest only reaches defects in the pleadings and verdict. Waite v. Starkey, 68 Vt. 181, 34 Atl. 692. It is likewise true that 'the motion must be heard and determined upon the record alone, and that the error so appearing must be such as would render the judgment erroneous, notwithstanding the verdict. Noyes, French & Fickett v. Parker, 64 Vt. 379, 24 Atl. 12. It has also been held that a judgment cannot be arrested because the evidence does not show any legal ground of recovery. Trow v. Thomas, 70 Vt. 580, 41 Atl. 652. It is likewise the law in this State that, though a motion in arrest for defects in the verdict is sustainable, it stands like a motion in arrest for defects in the pleadings, and must he tested by what appears on the face of the strict record, unaided by the evidence which is no part of the record. Hubbard v. Rutland Railroad Co., 80 Vt. 462, 68 Atl. 647. Another case holds that a motion in arrest reaches only defects apparent on the face of the strict record, and so can reach neither the specifications nor matters shown only by a transcript of the evidence. Boville v. Dalton Paper Mills, 86 Vt. 305, 85 Atl. 623. Of like import is Mont
From the foregoing decisions of our own court it is apparent that the defendants gain nothing by their motion in arrest. The case stands no differently than it would have done had the defendants discovered in season to make a motion in arrest, and not earlier, a decision that would have been fatal to the plaintiffs ’. case, had they brought it forward during the trial. The language of the court in Bagley v. Cooper, 90 Vt. 576, 99 Atl. 230, seems pertinent here: “Whatever we may think of the theory on which the parties finally tried their case and were content to have it submitted to the jury, it is futile for either now to urge that such theory of the law was erroneous.”
Judgment affirmed.