Watson v. Brainard

33 Vt. 88 | Vt. | 1860

Aldis, J.

Assumpsit for use and occupation will not lie unless there is a contract express or implied between the plaintiff and the defendant in regard to the occupancy of the premises. Hence the action fails when one enters and occupies as a wrong doer, or claims to hold adversely to the plaintiff, and by his own right and without any privity with the plaintiff, or enters and holds under a contract to purchase; Hough v. Birge, 11 Vt. 190; or upon an agreement to procure the title by proceedings in invitum under the statute, as in Stacy v. Vermont Central R. R. Co., 32 Vt. 551.

In Chapman v. Hoyt and trustee, Smith, 9 Vt. 153, it is intimated that a mortgagor cannot maintain an action at law against tlie mortgagee for rents 'and profits received by him while in possession under Ms mortgage, even though the mortgage debt has been paid and the' mortgagor is equitably entitled to them, but must resort to equity ; but the decision did not turn upon that point. In Strong v. Garfield, 10 Vt. 502, the defendant had sold the plaintiff a lot of land, reserving the right of possession without rent till the 1st of April. He continued in possession after the 1 st of April, and the plaintiff’s claim was for use and occupation after that time. The plaintiff had also sued in ejectment,, and obtained judgment.

The court held that as he had sued in ejectment and got a judgment he could not maintain assumpsit for use and occupation. But Judge Phelps says j^the plaintiff had his election in the outset to treat the defendant as a tortfeasor, and bring ejectment, or to waive the tort and sue in assumpsit for use and occupation.” This view seems hardly consistent with the general doctrines of the law upon this subject, or with the current of authority.

An express promise need not be shown to sustain the action. When the holding is by the permission of the plaintiff, an implied undertaking to pay rent may be inferred from slight circumstances.

In the ease at bar it appears that the defendants entered claiming a right to possess and to apply the rents upon the debt which they claimed to be due from Foster. In fact nothing was due from Foster. The plaintiff asked them to give up possession alleging that the debt from Foster had been paid. But they refused. If the case stopped at this point we think it would be difficult to sustain the action. But it further appears that the defendants by one of their number, (Mr. Smith,) told the plaintiff that the Foster debt was not paid, and they expected to ■account for the rents on the debt, but that if it should turn out that the debt was paid, he supposed they should have to pay rent. After this the defendants remained in the peaceable possession of the premises for about two years and a half. There was no denial of the plaintiff’s title and no unwillingness to pay rent; on the contrary, an avowal of an intent to pay the rent by applying it on the supposed Foster debt. The only controversy between the parties appears to have been as to the payment of the Foster debt. The referee finds that it was paid. We think the plaintiff might have well understood, from the conversation with Smith, that they would pay him the rent if the Foster debt was paid. The subsequent omission to sue the defendants as tortfeasors indicates that the plaintiff regarded it as a conditional promise to pay rent.

This evidence certainly tends to show an agreement to pay the rent to the plaintiff if the Foster debt was paid, and justifies the finding by the referee for the plaintiff to recover.

The judgment is affirmed.