Hard v. Brown

18 Vt. 87 | Vt. | 1846

The opinion of the court was delivered by

Bennett, J.

The defendant must be confined to the ground of variance, which it appears by the bill of exceptions was insisted upon in the court below. We do not think that there was, in this particular, a variance between the declaration and the proof. Though we might, perhaps, be of the opinion, that the term rent might be extended, so as to include what might become due for the use of furniture, if the intention of the parties required it, yet we think that the parties did not contemplate, that security should be given for the use of any furniture, which Hard might, in the end, have with the place. Brown was under no legal obligation to let him have any. If he had any furniture, which he chose to spare, it was to have been appraised, before the amount to be paid for its use could be ascertained. It is quite apparent, from the conduct of the parties, that they did not understand, that the use of furniture was included in the term rent. Hard went to take possession of the premises, without having any furniture appraised, and Brown made no claim, that the security was to include the use of furniture.

The terms of the contract required, that Hard should give sufficient security; and if it was adequate, it made no difference, whether it was personal or real security. Either might be sufficient. The fact, that the real estate had a previous mortgage upon it, was no legal objection to its sufficiency. It might, notwithstanding, be abundantly adequate. The jury were fully, and, as we think, correctly instructed on this point.

The defendant was not bound to have made out and tendered to the plaintiff a mortgage deed to secure the rent. The law never requires a useless ceremony to be performed ; and when Brown refused to take a mortgage, insisting that he had a right to require personal security, the defendant was excused from tendering a deed. Neither was he bound to have given any more explicit information in relation to the property, especially in a case in which none was required. ,

We do not see, that the county court erred in permitting witnesses, who had a personal acquaintance with Rood, to express their opinion in regard to his solvency, as derived from a personal acquaintance with him, and from information derived from others in the vicinity where he resided, and who were also acquainted with him. When the question in issue is in regard to the pecuniary standing of an individual, the matter must necessarily rest, to some extent, in opinion. This opinion must be based upon what the witness knows of the individual himself, and upon the estimate of others, who know him. The credit of an individual is ordinarily, in fact, in a great degree, made up of opinion.

The evidence relative to Rood’s habits for industry and sobriety was properly admitted. It had an evident bearing upon the character of the security offered, in relation to its sufficiency. Common prudence will always induce an individual, who is about to give credit to another, to inquire respecting his habits.

Upon this bill of exceptions it is quite immaterial, whether the lease commenced on the first or the second day of March. If it commenced on either day, Hard had the whole of the first day, in which he could give to Brown the security. The contract does not provide, that the security for the rent should be given only on the day, upon which the lease took effect. Besides, since Brown distinctly based his refusal to receive the security upon other grounds, it may well be questioned, whether he can now be permitted to take the position, that the plaintiff was premature in offering the security.

Some other points of minor importance were made in the argument of the case ; but the court are entirely satisfied with the ruling of the court below and affirm their judgment.