36 Vt. 603 | Vt. | 1864
~VVe think there was no error in admitting in evidence the unexecuted lease from Asenath Scott to the plain* tiff. The defendants’ claimed that it contained the whole of the agreement first made relative to leasing to the plaintiff, and the plaintiff conceded this, except that it did not cover the Warren lot owned by Charles A. Scott, and did not provide for so large a number of cows, as he claimed the real contract did. Both parties seem to have admitted that this draft of lease truly stated the details of the contract as finally settled, with certain variations. On this ground it was admissible. It was a part of the transaction and negotiation, between the parties, which finally resulted in a contract between them, and as a dispute arose as to some of the terms of that, the whole negotiation out of which the contract resulted, may he shown. It may be well enough called a part -of the res gestae. Being drawn up by one of the defendants, it was admissible as a declaration or statement by him, of what the first agreement was.
It does not appear that any undue or improper use was allowed
All the other objections to evidence, arise equally upon the charge to the jury upon the legal effect to be given to it, and therefore need not be considered as preliminary objections.
The court charged the jury that if the defendant Charles A. Scott, was the general agent of his mother Asenath, for leasing her farm, and managing her business, then he might lease her farm jointly with his, so as to make her jointly liable with him upon the stipulations in the lease in reference to his property, as well as her own.
This proposition of the charge we think is unsound. That Asenath Scott might herself lease her land and cows, jointly with her son’s land and cows, with his assent, is undeniable, and so become jointly liable with him, for contracts in reference to his property, as well as her own. If it be true then, that a general agent can bind his principal to the same extent that the principal can bind himself, this charge was correct.
But a general agent, is not a universal agent, having the complete disposal of all the rights and property of the principal. Such an agency completely merges the legal existence of the principal in the agent, and such an agency will never be inferred from general expressions, and can only be made out by the clearest proof of express authority. Story on Agency, § 21. Charles A. Scott being the general agent of his mother to lease her farm, had unlimited authority in relation to the terms of leasing, but had no authority at all to lease for her, lands not hers, and make her liable on the provisions of the lease. If he could make her, without her knowledge, or assent, a joint lessor of his land and cows, he could equally make her lessor with any other farm owner who should assent to enter into such relation, and could extend her liability to any extent, for property in which she had no interest. If he could bind her in this way, he could form a partnership between her and another, and subject her to partnership liability, without her knowledge or assent. Nothing but clear proof <?f the express delegation of such power,
It has been settled by repeated decisions in this state, that the action of account is the proper remedy for the adjustment of controversies growing out of this common mode of leasing farms, where the products and profits are to be divided between landlord and tenant. And a disposition has been shown, to require every thing growing out of such a contract, affecting the proper settlement and division, to be brought into such accounting.
The plaintiff’s claim for damages, because the defendants did not furnish the full number of cows provided for by the lease, under former decisions might have been brought into the accounting in an action of account. It was decided in Cilly, Adm’r v. Tenney, 31 Vt. 401, that the neglect of the tenant to properly cultivate the crops, whereby they were injured, and thus the joint profits in the products of the farm were diminished, was proper to be adjusted in an action of account.
The damages claimed here, were the tenant’s share of the profits which might have been made from these cows, and by the principle of the decision quoted, might have been settled in the same way.
But breaches of contract on either part, whereby the making of profits has been prevented merely, we think need not necessarily be brought into the account, and may be sued for independently, and a remedy obtained by a recovery in damages for such breach. The plaintiff’s claim for not being allowed to keep his oxen on the premises through the year, out of the products of the farm, stands on the same ground. It might bo brought into the accounting, but may be sued for as a breach of the contract.
Another, question is presented as to this claim of the plaintiff.
If the defendant Charles Scott, had done nothing more than to assert what he claimed was the contract, and that he should insist on his legal rights under it, and hold the plaintiff liable for the violation of the contract; this view of the legal effect of the plaintiff’s acquiescence was a sound one.
But the plaintiff claimed that Scott did more than to inform him what he claimed the contract was, and that he should assert his legal rights under it; that in effect and substance he threatened to assert what he claimed to be his legal right by force, and violence, and that he yielded to the claim, not because he feared to assert his claim in a legal manner, but because he feared personal violence from Scott, and that he had good reason for such fear. The court charged the jury that if the plaintiff had by the contract the right to keep the oxen on the premises, but took them away by direction of Scott, and because he had good reason to fear personal violence from Scott, if he did not yield to his direction, then the plaintiff could recover. The defendants claim that the charge was unwarranted, because there was no evidence to show that the plaintiff had any reasonable ground to fear any such use of force from Scott. It appears from the case, that there were no direct threats of force by Scott, but his language to the plaintiff as teported in the exceptions was exceedingly peremptory and commanding, much more so than was needful for the assertion of what he claimed was his legal right, and that he should insist on it.
The plaintiff testified that he believed he could only keep the
As to the items 1, 5 and 7 — salt, plow-point, and milk-rack, It seems from the ease that the plow-point and milk-rack were tools or implements to be used to carry on the farm, and manage the dairy, and to be furnished by the defendants, to be their property and. remain theirs after the lease expired, and not subject to division. If the plaintiff furnished them by the defendants’ request, we see no reason why they were not bound directly to pay for them, and no reason for bringing them into the farm account at all.
The salt, it seems, was to be furnished one-half by each party. It has been decided that in such contracts as this, when the parties were each to furnish half the seed, and one furnished more than his half, it should be settled in the general accounting. Salt for the cattle and dairy, would seem to stand on the same ground precisely. But if one furnished the whole, by the express request of the other, and with an express promise to pay for his half, it might form the ground for an immediate and separate claim, as if he loaned him money to purchase his half.
The facts proved in relation to the calf, did not justify a recovery for it by the plaintiff. The calf was part of the increase of the stock ; profits to be divided. It was not susceptible of division between them. They must sell it, and divide the money, or one must take it, and pay the other for his half. The defendants took it, and were to pay the plaintiff for his half. This was a severance of their interest in the calf, but was it a severance of this from their joint dealings in the farm, so as to furnish a right of action by itself? If so, then whenever either landlord or tenant takes any article of the joint products during the year, and a price is agreed between them, it forms a ground for a separate law suit.
From the very nature of such a contract, many articles of the joint products cannot be equally divided, and it is expected that
It was one of the stipulations in the lease, that the plaintiff was to furnish Mrs. Scott such articles as she wanted, wood, butter, milk, &c., and be paid for them by the defendants.
It does not appear from the case whether the articles the plaintiff did furnish her from time to time, were his own sole property, or whether they were the products of the farm which belonged to them jointly.
If they were his sole property, we see no reason why he should not be allowed for them in this action, but if they were products of the farm which belonged to them jointly, then the reasonable implication would be that they were to be accounted for, toward the defendants’ share of the profits and products of the farm, and the plaintiff could not maintain a separate action for them, without showing an express understanding, that they were not to enter into the general account.
Judgment reversed.