68 Vt. 315 | Vt. | 1896
I. The plaintiff’s contention that he can recover rent falling due after the commencement of the suit cannot be sustained. Waterman v. Buck, 58 Vt. 529. He excepted to the judgment of the county court, because it limited his right of recovery of rent to the date of the writ. By this holding the date of the writ is treated as the commencement of the suit. The writ is dated July 6, 1891, but was not served until August 1, 1891. The service of the writ is the commencement of the suit for the recovery of damages and for most purposes, except for interrupting the running of the statute of limitations. Hall v. Peck, 10 Vt. 474; McDaniels v. Reed, 17 Vt. 674; Hawley v. Soper, 18 Vt. 320; Strong v. Edgerton, 22 Vt. 249; Day v. Lamb, 7 Vt. 426. Until its service no jurisdiction is acquired over the defendant. Until then the defendant is not called upon to reply, but should then be compelled to reply to all claims then due the plaintiff, properly declared for. Hence when demand must be made to perfect a right of action, it is sufficient if it precede the service of the writ, although the writ is in the hands of the officer. But where it is incumbent upon the plaintiff to take some action to save his right from becoming barred by delay, or by remaining at rest, then, when he sues out his writ, although it be not served immediately, if service thereof is
The referee has found that the defendant was to pay the rent commencing to accrue May i, 1891, monthly, at the rate of three dollars per month. The plaintiff could recover only for the full month’s rent which had accrued when he served his writ. He could not divide the rent for the month of August and recover rent for the four days of that month which had elapsed when his writ was served. But he could recover rent for the months of May, June and July and for the” use of the land; in all fourteen -dollars. The court erred in limiting the plaintiff’s right of recovery of rent to the date of the writ.
II. The defendant excepted to the judgment “for that upon the findings of the referee the item of thirteen dollars fifty cents should be treated as a payment”. This item is for team work done by the defendant for the plaintiff on April 30 and on several days in May, 1891, as found by the referee, “to apply on the rent of the plaintiff’s premises and it was so expected by the plaintiff. ” Before the earliest -date the defendant was in occupation of the plaintiff’s premises for which he was to pay the rent monthly. The rent was to commence to accrue May 1, 1891. This agreement was made, when the work was performed, at a time when the tenancy was existing. If the finding makes this item a payment in advance on the rent, it operated to -extinguish the rent as it became due from month to month. We have quoted all which the referee has found directly upon whether this work was a payment on the rent. He neither finds that the parties did, nor did not agree upon the price per day for the work. He allows a smaller price per day than charged by the defendant and says his allowance is reasonable. Whether by this he means that the parties did not, at the time the work was done, agree upon the price per -day for the woi’k, but impliedly left the price to be fixed as
Judgment reversed. Judgment for the plaintiff to recover 50 cents with interest from August 4, 1891, and no costs to either party in this court.