Fogg v. Hill

| Me. | Jun 15, 1842

The opinion of the Court, Shepley J. holding a jury term at the time of the argument, and not sitting in the case, was drawn up by

Whitman C. J.

— By the offer to be defaulted the cause of action must be regarded as confessed. Such offer, under the statute, is equivalent, in its effect, in this particular, to bringing money into Court upon the common rule, which has ever been considered as leaving nothing in controversy but the quantum of the debt or damage, which the plaintiff is entitled to recover. The evidence therefore tending to prove a tenancy as lessee, under the plaintiff, was, after such offer, superfluous; and the arguments of counsel thereupon are in the same predicament.

As the case stands the evidence, as to the value of the tenancy to the defendants, as lessees under the plaintiffs, as to which there was no special agreement, is the only subject for consideration. The plaintiffs were permitted to show what these premises had rented for in years immediately preceding the period in question ; and also what other similar tenements rented for in the same neighborhood, at and about the same time. To this there could be no reasonable objection. Nothing is more common in ascertaining the value of one thing, than to compare it with others of known value, and of a similar description. Money itself is but a thing of known and fixed value ; and we are continually comparing all other things with it by way of fixing their value. If two dwellinghouses are nearly contiguous, and one of them has a fixed and known value, and the other has not, but its value is to be ascertained, resort may be had to a comparison of the one with the other for the purpose. Our constant course of reasoning is from things known to things unknown; and our deductions depend upon it. Our conclusions from circumstantial evidence are of this nature; and the evidence here relied upon to prove the value of a tenancy is of this class.

The leases of the store in question in former years, to which one of the defendants was a party, were properly admissible. These show what he had admitted the value of the tenancy to be in years immediately previous. If rents had fallen it would have been competent for the defendants to have shown it, by way of lessening the effect in a greater or less degree, arising from such admission.

As to the message sent by Noy, and by him communicated to the defendants, we see no objection to its being proved, together with the reply, if any, that was made to it. It is every day’s practice to give in evidence messages and replies between parties. This was nothing more than information to the defendants, that if they still continued to hold the tenement a certain rent would he expected for the quarter. The defendants might have replied, that it was not worth so much. In such case the evidence might have been of very little, or indeed, of no value to the plaintiffs. If they made no reply it might be inferred that they assented to the correctness of the claim; and in that view of it some weight might be properly attached to it. As to the instruction of the Judge to the jury, we see no reason to question its correctness.

Exceptions overruled.