The opinion of the court was delivered by
The construction we put upon the report of the referee is, that Holmes leased the whole of the property to Newcomb, and although the latter did not use it to exceed one half its capacity, that fact does not affect the question as to what the lease was in respect to the property leased. It would, of course, under the terms of the lease in question, affect the amount received by Holmes as rent. But Holmes leased the slaughter-house, not the half of it, and received the sixty dollars as rent. The occupancy of Newcomb having been, as we think from the reading of the report, entire and exclusive, Holmes is bound to account to his co-tenant for what he has received by such occupancy more than his just proportion, and this without any agreement to that effect. R. L. s. 1202; Hayden v. Merrill, 44 Vt. 336; Wiswall v. Wilkins, 5 Vt. 87.
Judgment affirmed.