68 Vt. 410 | Vt. | 1896
Defendant let his farm to plaintiff for a year on equal shares, and agreed “to furnish twenty cows, one horse and harness,, all the farming tools, including the dairy utensils.” There were twenty cows on the farm at the time, and these the defendant furnished at the commencement of the term, and they were the’ones that, plaintiff expected to have. Four of them died during the term, and defendant did not furnish others in their steád. Nor did he, as the plaintiff’s testimony tended to show, furnish a horse during the last three months 'of the term, nor at anytime a suitable plow, harrow, cultivator, horse rake, grindstone, nor double wagon.
Defendant claimed that he was not bound to furnish cows
If this was a mere letting of the cows and the tools, the court was probably in error. But we think it was more. It is manifest that the cows were the tenant’s principal source of income. It was natural, therefore, that the contingency of death or other deprivation of them without his fault should be provided against. It was provided against, we think, by the word “furnish,” used by the parties. This word imposed an obligation upon the defendant as continuous as the lease. By it he undertook to supply the plaintiff with twenty cows, not only at the commencement of the term, but during the term. No other construction would do justice between the parties. Brown v. Burrington, 36 Vt. 40, favors this construction. There the landlord was “to find a yoke of oxen to do the work on the farm.” The oxen were sold during the term by consent of the tenant and partly for his benefit; but it was held, nevertheless, that the landlord was. under obligation to continue to furnish a team when necessary. “To find” a team and “to furnish” a team are the same thing. “To. find” twenty cows and “to furnish” twenty cows are the same thing. •
This is also an answer to the claim of error in the charge as to the farming tools.
The testimony excluded would not aid to give the lease a * different construction from what we give it, but rather, the same construction. It does not appear that the court charged that the wagon is a tool, within the meaning of the lease.
The matter of bad husbandry was a proper subject of recoupment under the general issue. Allen v. Hooker, 25 Vt. 137 ; Keyes v. Western Vermont Slate Co. 34 Vt. 81, 84, Giving notice of that defense, and therein specifying the particulars in which it was claimed to consist, did not abridge the defendant’s right to show it under the general issue, and that it also consisted in other things than those specified in the notice ; for the notice must be treated as a pleading, and cannot be regarded as a specification and therefore a limitation of, proof. Pleading specially what is admissible under the general issue, does not abridge the scope of the proof under the general issue. It was said in Bowen v. Hall, 20 Vt. 232, 244, that the fact that the defendant attempted to justify the alleged slander by pleading the truth of the words, ought not to be allowed to abridge, in any degree, his right under the general issue in respect of showing in mitigation of damages the general bad character of the plaintiff in regard to the offence imputed.
Judgment reversed and cazise remanded.