Hydeville Co. v. Eagle Railroad & Slate Co.

44 Vt. 395

Opinion

The opinion of the court was delivered by

Ross, J.

I. The plaintiff claims that the lease of October 1, 1866, took effect and carried rent from its date, and that the only effect of tbe subsequent agreement of March 20, 1867, was to discount $50 from the rent reserved in the lease. Such construction would render the last part of that agreement entirely nugatory. That clause which provides that two hundred dollars shall be paid the plaintiff “instead of the provisions of said lease,” might as well have been unwritten. If this is not the construction to be given to the last part of the agreement, the plaintiff claims that it should bo construed as a substitution of two hundred dollars for the rent named in the lease, and that the rent should commence from October 1, 1866. This construction would render the first part of that agreement repugnant and inharmonious. With this construction the discount from the lease would be $79.16, instead of $50, as stipulated in the first part of the agreement. It is the duty of the court, if possible, to construe the agreement so as to give effect to every part, and form, from the parts, a harmonious whole. If the circumstances under which the agreement was entered into be considered, there will be no difficulty in finding such a construction. By the original lease, the plaintiff was to put the tenements in repair within one week from its date. This was a condition precedent to the defendant’s obligation to take possession and pay rent. The plaintiff made an attempt to make the repair’s, but did not fully perform the condition precedent. The defendant, for that reason, refused to take possession, or to pay rent. Thus matters remained, till the agreement of March 20th was entered into. No obligation rested upon the defendant to pay rent for the time which had elapsed since the making of the-lease. The parties mutually understood that the lease would terminate April 1, 1868. This probably arose from a mistake in reckoning the time the lease was to run. Under these circumstances the plaintiff, in consideration the defendant would put the premises in good repair and surrender them in like good repair, agreed to discount fifty dollars from the lease, and the defendant agreed to pay $200, “ instead of the provisions of said lease.” At this time, as the parties mutually understood, the lease had only about one year to run. Construing the lease under the circumstances for the purposes of rent, as commencing at the time this subsequent agreement was made, and as continuing one year from that time, or to April 1, 1867, (the ten additional days bo. ing used for repairs,) wo can give effect to every part of the agreement, and have all the parts harmonious. The discount is fifty dollars and no more, and the two hundred dollars which the defendant is to pay “ instead of the provisions of the lease” is just the yearly rent reserved in the lease diminished by a discount of fifty dollars. This is the construction which we think should be placed upon the agreement of March 20, 1867. Under this construction the plaintiff is not entitled to recover for the $125 additional rent under the lease allowed by the county court." Neither can he recover for the month from April 1 to May 1, 1870, during which the defendant did not occupy the premises. The parties had, by mutual mistake in regard to the duration of the written lease, terminated it April 1, 1868, and the holding over, provided for, commenced from that date. This is evident from the bill for rent, presented by the plaintiff for the quarter ending March 31, 1870, as well as from the facts found by the court.

II. The defendant insists that the plaintiff has misconceived his remedy; that he should have declared on the lease, which is under seal, in debt for covenant broken, and not in assumpsit; that, at least, that part of the $200 allowed by the county court, which is for waste and which arises under a stipulation in the lease, cannot be recovered in assumpsit, and that, as the county court has failed to find what portion of the $200 is for waste, under the terms of the lease, and what part for failure to leave the premises in “ like good repair,” under the agreement of March 20,1867, not under seal, no recovery can be had in this action for any part of that sum. This leads to a consideration of the effect of engrafting a written agreement, not under seal, upon a previous existing agreement, under seal. The lease became an existing contract, binding upon both parties, at the time of its execution and delivery, October 1, 1866. It is true the defendant was not bound to take possession of the premises and pay rent, unless the plaintiff made the stipulated repairs within a week from the execution of the lease. Neither could the plaintiff have maintained an action of debt on covenant for rent under the lease, till he had performed the condition precedent by making the repairs. Yet the defendant could have maintained an action against the plaintiff, after the expiration of a week, for his failure to make repairs as provided in the lease. Hence the lease had been a subsisting contract between the parties nearly six months when the agreement of March 20, 1867, was entered into : so the doctrine claimed by the plaintiff, that the agreement of March 20th is to be taken as a part of the original lease and under seal, because made at the time the lease took effect, does not apply. It is entirely different, in this respect, from Graham v. Stevens, 34 Vt., 166. There the writing upon the back of the deed, which showed the deed absolute upon its face was in fact a mortgage, was made at the same time the deed was made, and, as held by the court, became a part of the deed. Here the parties have en-grafted a written agreement upon a subsisting sealed contract. From the decisions, Porter et al. v. Stewart, 2 Aik., 417, and Sherwin et al. v. Rutland Burlington R. R. Co., 24 Vt., 347, it is evident that the plaintiff cannot maintain an action of debt on covenant for the rent reserved in the lease, nor for any breach of the stipulations therein contained, to be performed by the defendant, inasmuch as he cannot show a fulfillmeut of the lease, on his part, in those particulars which were to be performed by him as conditions precedent to his right of recovery. The only remedy the plaintiff has, is upon the agreement of March 20, which is not under seal, and for a breach of which an action of assumpsit will lie. By this agreement the whole agreement, under which the defendant occupied the premises, was reduced to an agreement not under seal. The lease is referred to, for the terms of this agreement other than those contained in the writing of that' date. It was as if the parties had written, we agree as is contained in the lease, which is referred to, with this present written agreement - added thereto. Thereby the whole agreement, in character, was * reduced to the character of the additional agreement then entered into. The whole agreement, thus made, was an unsealed agreement in writing, and contained the promises of the defendant not to commit waste, and to leave the premises in good repair, for the non-fulfillment of which the court has found the plaintiff entitled to recover $200 and interest from May 1, 1870. This is in accordance with what is said in Sherwin et al. v. R. &. R. R. Co., above cited. It is there remarked, “It is now considered that if the party choose to sue upon the contract specially, he must declare in assumpsit, treating the enlargement as having incorporated the original contract into itself, and so all resting in parol,” citing Vicary v. Moore, 2 Watts R., 251; Chitty on Contracts, 113, and notes.

The judgment of the county court is reversed, and judgment, rendered for the plaintiff to recover $200 and interest from May 1,1870.