Bodell v. Gibson

30 N.Y. Sup. Ct. 40

• Court: New York Supreme Court
• Decided: November 15, 1880
• Status: Published

Opinions

Lbarned, P. J.:

The evidence by which the .plaintiff claims to take this action ■ out of the statutory -limitations is. as follows; The plaintiff rented a .-house of. the .defendant, May 1,-1868, at $68 a year rent, by verbal lease; and lived-therein four years. When the first quarter was up, he told defendant that ho wanted to- pay him the rent. The defendant said : “ No, let' that- apply on what was laying there," referring to the.loans. Nothing more was ever said on the subject, and no rent was ever paid. The plaintiff now insists that the effect-of the conversation was that the rent was to be a payment on the-loans; that the last rent payable was May 1, 1870; and that, as this action was commenced April 28, 1876, it is not barred by the-statute..

We think that the referee correctly found that there was no> binding agreement proved, to the effect that the whole rent was to-apply on the. loans. The .conversation related to the rent them supposed to be payable; that is, the first quarter. When the: rent of the second quarter, or of any following quarter, had become: due, if the defendant had sued the plaintiff thereon, it is plain that the conversation given in evidence would not have been sufficient' to defeat a recovery. It would have been said, and said correctly,, that that conversation was not an. agreement as to all or any oá" th© future rent. The plaintiff wanted to pay “ the rent,” that is;, the: quarter’s rent then due; and the defendant referring to the maney which the plaintiff then wanted to pay, said, let that apply, &&.

And from the mere fact'that rent was not paid during th© whole; four years we should not be justified in extending the meaning of .the conversation, beyond the subject which the parties them had in mind, and of which .they were then speaking.

'It may be that there was a tacit thought, by each of the parties, as rent came due from time to time, that the defendant was indebted upon the loans. But we find no evidence of an agreement of their minds to apply the subsequent rent to the loans.

Perhaps, in this view of the matter,' it is hardly necessary to discuss the legal question whether, if the parties had agreed at the time of this conversation, in 1866, that all rent thereafter to become due should be applied on the note, this agreement, without any further act on the part of either, would have made the rent which became payable May 1, 1870, a payment on the loans; so as to take them-out of'the statutory limitation.

A somewhat similar question was decided adversely to the views of this plaintiff, ■ by the General Term of this department, in November, 1877, in the case of McDonnell v. Blanchard (not reported), citing Harper v. Fairly (53 N. Y., 444).

Nor is the present'case one of running or mutual accounts. (Perrine v. Hotchkiss, 2 Thomp. & C., 370 ; 59 N. Y., 649; Cuck v. Quackenbush, 20 Sup’m. Ct., 107.)

The judgment should be affirmed, with costs.