| Vt. | May 15, 1894
I. The defendant’s exceptions as to the admission of the lease in evidence, to the refusal to order a verdict in its favor, and to the refusal to comply with its requests, numbered one to seven inclusive, concentrate in the contention, that, on the proof, the plaintiff did not entitle itself to maintain assumpsit. The first count of the declaration is special assumpsit to recover of the defendant its proportion of certain repairs, as fixed by a written lease, of the plaintiff’s meeting house and grounds, executed March 6, 1849. The lease is defectively executed by the plaintiff, but it was stipulated on the trial, that the trial should proceed the same as it would if the lease had been properly executed. The lease, under this stipulation, is to be treated as properly signed, sealed and acknowledged by the plaintiff. It is a deed poll. It is not in form an indenture, and is neither/ signed nor sealed by the defendant. By taking possession under it the defendant accepted the lease and became bound to carry out and perform those provisions of it which rested upon it to perform. Such acceptance did not make the . lease an instrument under the seal of the defendant. In law it was similar to, and no more than, a written acceptance of its provisions, signed by the defendant, but not under its seal. As to the defendant, such written acceptance would make the whole instrument unsealed on its part. The defendant stands related to the lease, like parties to an instrument executed under the seal of each, on which the time of I performance has been extended by parol, or by writing not/ under seal. In such case covenant will not lie, but assump-i sit will. Sherwin v. Rut. & Bur. R. R. Co., 24 Vt. 347" court="Vt." date_filed="1852-03-15" href="https://app.midpage.ai/document/sherwin--salpaugh-v-rut--bur-rail-road-6574793?utm_source=webapp" opinion_id="6574793">24 Vt. 347;
In regard to the items sought to be recovered the lease was fully executed by the plaintiff. In respect to these items it was not executory. But if executory recovery could be had under the first count; These exceptions are not sustained. The plaintiff could maintain this action of assumpsit if properly sustained by the evidence.
II. The defendant’s eighth and ninth requests to charge,, if good law in other respects,'were not applicable to the case-made by the first count of the declaration and evidence. The premises rented to the defendant were the basement story of the meeting house, which was deemed to be equivalent to one third part thereof, and the right to occupy the lot on which the house stood in common with the plaintiff. For the use of these premises the defendant agreed to contribute and did contribute, as stipulated in the lease, towards putting the premises in condition for such occupancy, and agreed that “the after repairs of the outside of said house and belfry ” should be borne ‘ ‘ one-third by the town and two-thirds by the society.” The defendant contends that by * ‘ outside of said house and belfry ” is meant the outside of the house and the outside only of the belfry as it then existed. We do not think that this construction would carry out the intention of the parties. The defendant by the lease,, among other things, was given the exclusive use of the basement room, and the plaintiff of the room above the basement. Both were to have use of the bell. The whole belfry and outside of the house were for their common benefit. The sentence as framed is fully as capable of this construction as of the construction contended for by the defendant. When applied to the circumstances this construction effectuates the-evident intention of the parties.
The repairs spoken of were to be made to these premises as a whole, and not to the body of the house as one separate
III. The construction which we have placed upon the lease makes the instructions of the court, requiring the jury to find that the construction of the new belfry was “ a reas
IV. The defendant had settled for the alterations made in 1849, entered upon the use of the property under the lease, and thereby approved of and' precluded itself from setting up those alterations as contributing to the necessity of the reconstruction of the belfry in 1890. The court therefore properly instructed the jury, that the defendant’s liability for the repairs of 1890 was to be determined without regard to “whether the work of the society in 1849 was properly or improperly done.” Nor can it be maintained, that “the action of the town’s selectmen,” its lawfully constituted agents in all general matters of the kind, was improper to be considered, as bearing upon the necessity of the repairs made in 1890, but not conclusive upon the town. While the selectmen were not the agents of the town to concede away its rights, their action in a matter properly within their care, was evidence, proper to be considered in determining the necessity of the repairs. Such action tended to establish the then condition of the belfry and the practica
The result is, we find no error in the action of the trial court.
Judgment affirmed.