Hosmer, Ch. J.
In this case, I am of opinion, that the court erred, in the admission of the writing exhibited in evidence by the plaintiff; and in the rejection of the testimony, offered by the defendant.
1. The writing was not a lease, but merely an agreement to lease, on a precedent condition, which never took effect.
Whether it was a lease, or an agreement to lease, must depend on the intention of the parties, as it is to be collected from the whole of the written instrument. 1 Bac. Abr. 160, 1. Goodtitle v. Way, 1 Term Rep. 735. Roe v. Ashburner, 5 Term Rep. 163. The words, although a part of them may import a present demise, or a part may imply a future lease, are not conclusive; but the intent in this, as in every other contract, must be eviscerated, by a reasonable construction of all the expressions used. Viewing the writing, not in detached parts, but as a whole, directed to a definite object, I am incapable of entertaining a doubt, as to its genuine intendment. It commences with the phrase, “It is hereby agreed,” and following these introductory words, it next declares, “that said Buell will let to said Cook, the use of the county house,” which words imply, not that he does demise, but that, in future, he will do it; and Cook, having agreed to pay therefor 250 dollars, the instrument closes with a condition precedent; “provided a majority of the county court agree thereto.” This expression, by grammatical, as well as by legal construction, qualifies all the antecedent matter to which it is applicable, and implies, that Buell will, in future, demise, and Cook will pay a specified rent, if the county court give the agreement their sanction. Both these antecedents precede the proviso, without the intervention of any stop, except a [243] comma; and the condition refers to them equally. If any difference were attempted, it would be most rational to say, that Buell wanted the approbation of the court, as to the demise of the property; for if he had the authority to lease it, he would scarcely ask them to approve of the rent to be reserved. The condition is, in the writing, manifestly out of place; and, expressed in a manner the most intelligible, to reach the purpose obviously intended, the covenant would thus read: “It is hereby agreed, provided a majority of the county court assent thereto, that I, Jonathan Buell, will let to you, Roger Cook, the county-house, from the 1st of December, 1817, to the 10th of April, 1818; and that I, Roger Cook, will pay therefor 250 dollars.” This construction is confirmed, by the consideration, that the subject intended to be demised, was not the property of Buell, but belonged to the county; and that “the county courts, in their respective counties, are authorised and directed, to take care of all the property, real and personal, which belongs to such county; and the same to let, demise and manage, for the benefit of the county.” (Stat. p. 141.) Without the licence of the county court, Buell could not lease the county-house, and that this was perfectly understood, by the parties, is very apparent, when their agreement was expressly suspended, for its inception, on the approbation of the court. No other reason has been, or can be, assigned, for the reference made to the court, by the proviso, in the contract. If the right to lease had existed in Buell, he would as soon have referred to the parish clerk for his assent to the disposition of the county-house, as to the county court. On this foundation, it is very perceptible, that Buell could not make a lease of another’s estate; but if he contemplated a demise, he would agree to do this act in future, provided, by application to the general agent, he could obtain permission. Assuming that he conducted with common sense and common discretion, the proper presumption, in absence of proof to the contrary, it is convincingly manifest, that the writing was intended to be a conditional agreement, and not a lease; and hence there exists every reason, for giving to the words of the instrument, their usual and popular signification.
A recurrence to the cases on this subject, is not necessary to extract from them the principle of construction. This is most palpable and indisputable, and has been already expressed. The application of the rule, if any case precisely like [244] the one before us can be found, may guide to a right exposition of the words in the writing under discussion; but the citation of a host of decisions, differing in any essential feature from the case before the court, can subserve no valuable purpose. After a reference to numerous cases, and discussing their construction, we are brought back to these simple questions; what was the object and intent of the parties? Did they intend there should be a lease of the county property, by the writing which they have signed, or was it their intention to agree on the terms of a demise, if the county court should lend their sanction to the agreement? The solution of these enquiries must depend on the words, the effects and consequences, and the reason and spirit of the writing, in all its parts; and having no hesitation on this point, I shall leave it without further observation.
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Hosmer, Ch. J.
In this case, I am of opinion, that the court erred, in the admission of the writing exhibited in evidence by the plaintiff; and in the rejection of the testimony, offered by the defendant.
1. The writing was not a lease, but merely an agreement to lease, on a precedent condition, which never took effect.
Whether it was a lease, or an agreement to lease, must depend on the intention of the parties, as it is to be collected from the whole of the written instrument. 1 Bac. Abr. 160, 1. Goodtitle v. Way, 1 Term Rep. 735. Roe v. Ashburner, 5 Term Rep. 163. The words, although a part of them may import a present demise, or a part may imply a future lease, are not conclusive; but the intent in this, as in every other contract, must be eviscerated, by a reasonable construction of all the expressions used. Viewing the writing, not in detached parts, but as a whole, directed to a definite object, I am incapable of entertaining a doubt, as to its genuine intendment. It commences with the phrase, “It is hereby agreed,” and following these introductory words, it next declares, “that said Buell will let to said Cook, the use of the county house,” which words imply, not that he does demise, but that, in future, he will do it; and Cook, having agreed to pay therefor 250 dollars, the instrument closes with a condition precedent; “provided a majority of the county court agree thereto.” This expression, by grammatical, as well as by legal construction, qualifies all the antecedent matter to which it is applicable, and implies, that Buell will, in future, demise, and Cook will pay a specified rent, if the county court give the agreement their sanction. Both these antecedents precede the proviso, without the intervention of any stop, except a [243] comma; and the condition refers to them equally. If any difference were attempted, it would be most rational to say, that Buell wanted the approbation of the court, as to the demise of the property; for if he had the authority to lease it, he would scarcely ask them to approve of the rent to be reserved. The condition is, in the writing, manifestly out of place; and, expressed in a manner the most intelligible, to reach the purpose obviously intended, the covenant would thus read: “It is hereby agreed, provided a majority of the county court assent thereto, that I, Jonathan Buell, will let to you, Roger Cook, the county-house, from the 1st of December, 1817, to the 10th of April, 1818; and that I, Roger Cook, will pay therefor 250 dollars.” This construction is confirmed, by the consideration, that the subject intended to be demised, was not the property of Buell, but belonged to the county; and that “the county courts, in their respective counties, are authorised and directed, to take care of all the property, real and personal, which belongs to such county; and the same to let, demise and manage, for the benefit of the county.” (Stat. p. 141.) Without the licence of the county court, Buell could not lease the county-house, and that this was perfectly understood, by the parties, is very apparent, when their agreement was expressly suspended, for its inception, on the approbation of the court. No other reason has been, or can be, assigned, for the reference made to the court, by the proviso, in the contract. If the right to lease had existed in Buell, he would as soon have referred to the parish clerk for his assent to the disposition of the county-house, as to the county court. On this foundation, it is very perceptible, that Buell could not make a lease of another’s estate; but if he contemplated a demise, he would agree to do this act in future, provided, by application to the general agent, he could obtain permission. Assuming that he conducted with common sense and common discretion, the proper presumption, in absence of proof to the contrary, it is convincingly manifest, that the writing was intended to be a conditional agreement, and not a lease; and hence there exists every reason, for giving to the words of the instrument, their usual and popular signification.
A recurrence to the cases on this subject, is not necessary to extract from them the principle of construction. This is most palpable and indisputable, and has been already expressed. The application of the rule, if any case precisely like [244] the one before us can be found, may guide to a right exposition of the words in the writing under discussion; but the citation of a host of decisions, differing in any essential feature from the case before the court, can subserve no valuable purpose. After a reference to numerous cases, and discussing their construction, we are brought back to these simple questions; what was the object and intent of the parties? Did they intend there should be a lease of the county property, by the writing which they have signed, or was it their intention to agree on the terms of a demise, if the county court should lend their sanction to the agreement? The solution of these enquiries must depend on the words, the effects and consequences, and the reason and spirit of the writing, in all its parts; and having no hesitation on this point, I shall leave it without further observation.
The agreement contained in the above writing was not carried into effect, because it never received the approbation of the county court. The sanction of the court could alone be given, when acting in a body; and the only evidence of their act, on this, as on all other subjects, is the record of their transactions. It has been said, that by the expression, “a majority of the county court,” was meant, the personal approbation of the greater number of the judges. Much may be said on this question, on either side, as stress is laid on the word majority, on the one hand, and on the words the county court, on the other; that is, if the words are tenaciously adhered to, and the spirit and intent of the contract, is abandoned. Waiving a particular discussion, founded merely on the meaning of the words above-mentioned, and declaring it as my opinion, that it is no unusual phraseology, when the determination of a court acting judicially is spoken of, for persons to say, “the majority of the court,” thereby intending to express the thought, that the question was decided in a particular manner, I will place my opinion on a surer ground. The agreement was suspended on the approbation of those, who had right to approve the leasing of the county property, and not of those, who had no such right. Now, who had this right; and in what manner must their approbation be evinced? I answer, the county court; and their record is the only mouth, through which they can speak. To me it seems little less than infatuation to assert, that the property of the county, of every description, is confided literally to the county court; and yet that this is not a united body, deliberating and acting [245] together, each one of the judges aiding the reflections of the other, and the thoughts of each being filtrated through the minds of all, and thus producing a wise result, but, that this county court, is, the judges, acting separately, without deliberation, without intercommunication, in haste, or at the corners of the street, and when their separate opinions are thus obtained, that there is no permanent memorial of them, but that they are to be proved ore tenus; and by the aid of arithmetic, that the result is to be ascertained. I cannot yield my assent to a pretension entirely unnecessary, and which jeopardizes the county property; is pregnant with manifold abuses; and is recommended, by no possible benefit, to countervail its numerous disadvantages. On the contrary, it is manifestly clear, when there is any act, not ministerial, confided to the discretion of several persons, that they must jointly act and deliberate. This is the case with auditors, referees, committees and arbitrators. And emphatically, when the county court is to transact business, not judicial, but which requires the exercise of discretion, as in the ascertainment of the property belonging to a person who intends making application for a pension, they must act unitedly, and their doings be made a matter of record.
2. The rejected testimony should have been admitted. The written agreement not having been approved, by the county court, nor any lease of the county-house given by Buell to the defendant, he had right to prove, that he took and retained possession of it under the county, and not under the plaintiff. The title of the plaintiff, I admit, could not be questioned, by the defendant, if the relation of landlord and tenant subsisted between them. This fact was in issue; and the plaintiff was unable to establish it, by the written agreement. What, then, should prevent the defendant from shewing, that he took possession of the county-house under the county, and became their tenant? Strike the written contract out of existence, and inefficacious as it was, it must thus be considered, it left the defendant free to prove, that he did not go into possession under the plaintiff, which he would do effectually, by evincing that he possessed and occupied by permission of the county.
Peters and Brainard, Js. were of the same opinion.
Chapman and Bristol, Js. dissented.
New trial to be granted.