Harrower v. Heath

19 Barb. 331 | N.Y. Sup. Ct. | 1855

By the Court,

Welles, J.

The "only question of any importance in this case is, whether the defendant Cole is discharged from liability under»the agreement entered into between the plaintiff and defendants. The referee finds that after the spring c^pps were put in by the defendants, and about the last of June or first of July of the year which the farm, by the agreement, was to be worked by the defendants, the defendant Cole, and Gorton, applied to the plaintiff for his consent that Gorton should buy the interest of Cole in the crops, take the place of Cole under the lease and work the land. That the plaintiff gave his consent to the proposed arrangement, by saying he had no objection to it. That thereupon Gorton purchased Cole’s interest under the lease and went into possession of the farm in Cole’s place; After that, it appears that Gorton, together with the defendant Heath, went on and cultivated the farm together, and that the plaintiff recognized Gorton as occupying the place of Cole under the agreement made with the defendants. The substitution .of .Gorton for Cole in the agreement was assented to by-the plaintiff, not only before the arrangement between them for that purpose was consummated, but was in various ways recognized and ratified by him, afterwards.

It would be rank injustice to allow the plaintiff, after all this, and after the expiration of the time for which the agreement was to continue, to repudiate the substitution and hold Cole to any liability under it. The arrangement was a reasonable and lawful one, and no good reason appears why the parties should not be compelled to observe it. The original agreement was by paroi, and so was the arrangement by which Gorton was substituted in the place of Cole. There is no rule of law at variance with this substitution, and in my opinion, all the parties are bound by it. Its effect was to release Cole from all liability or obligation to the plaintiff, under the original agreement. Such was manifestly the intention of the plaintiff, as well as of Cole and Gorton. If a lessee assign over the lease and the lessor accept the assignee as his lessee, an action of debt will not lie against the original lessee. (Auriol v. Mills, 4 D. & E. 98.) The rule was different in respect to sealed leases containing express covenants, where the obligations of the lessee under the covenants would, in some cases, continue.

But here was nothing but a paroi agreement for cropping, by which the plaintiff and defendants became tenants in common both of the farm and the crops, &c. until Gorton was substituted in the place of Cole, and after that the tenancy in common continued between the plaintiff, Heath, and Gorton, to the end of the year. (Putnam and others v. Wise, 1 Hill, 234.) The present case cannot be distinguished, in that respect, from the one last cited, which in effect overrules Stewart v. Doughty, (9 John. 108.)

The referee finds that the plaintiff sustains his action for hay sold the defendants to the amount of twelve dollars, and offsets against that claim a demand of the same amount which the defendants are entitled to for their services in procuring lumber to build new fence upon, the farm. It is fair to infer that these services were not rendered under the agreement for cropping the farm, as they are not provided for in in that view it would seem the offset is pro*

The plaintiff’s counsel contends that no under the answers, and this objection was cree. The answer of the .defendant Heath claims a set-off in his own favor for work and labor, &c. and not in favor of himself and Cole; and the answer of the defendant Cole does not claim any set-off whatever. Heath’s answer precludes the idea of any surprise on the part of the plaintiff; and assuming that there is a technical informality in stating the set-off, we think this is a case provided for by § 173 of the code, where the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by striking out the name of any party, &c. or where the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. We think the answers may now be so amended as to present, in proper form, the claim of this set-off, and then the report be allowed to stand and the judgment affirmed.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

Ordered accordingly.