Jones v. Woodman

25 N.H. 311

• Court: Superior Court of New Hampshire
• Decided: December 15, 1852
• Status: Published

Opinion

Eastman, J.

If the plaintiff cannot maintain this suit, and, as suggested by the counsel for the defendant, has no cause of action against Thayer, then it is quite evident that he must lose three hundred dollars unjustly. He paid in advance $450 for the use of the farm three years, being $150 a year; and he occupied it but one year, having surrendered the possession according to the terms of the lease.

We entertain no doubt that had Thayer sold and conveyed the premises to Woodman without reserve, and then .notified Jones to quit, without assigning the lease, that Jones could maintain his action against Thayer for the amount paid for two years rent, being the balance of the unexpired term. He had received of Jones $300, and then had it in his possession, and it would be so much money which in equity and good coriscience belonged to the plaintiff, and for which he could sustain an action for money had and received.

But can Jones maintain an action against Woodman? We think he can. Woodman bought the property in November, 1847, subject to" the lease, which did not expire till May, 1850. It had then two years to run from May, after he took his deed, and had the lease not been assigned, Woodman would not be liable, because there was nothing in his deed that gave him the right to terminate the lease, and nothing that gave him possession till it was terminated; but, on the contrary, an express reservation that the conveyance was subject to the lease. So that, independent of the assignment, there could have been no consideration on which to found the action. But, at the same time that the deed was given, Thayer assigned to Woodman all his right, title and interest in the lease, and, for aught that appears, without any consideration paid to him therefor; and the lease containing the clause that it might be terminated by Thayer, “ or his assigns,” Woodman, by giving notice to Jones to quit, thereby obtained possession of the premises the following April, two years before he otherwise could.

Woodman had the deed which gave him possession at the expiration of the term which the lease had to run; and he had the lease, which he could terminate or not, at his pleasure. The lease expressed the consideration and conditions upon which it had been given, and he took it as it was, subject to the rights of all parties connected therewith. If he chose to let it remain, the plaintiff would have no cause of complaint against any one; but if he should give him notice to quit, then he ought to indemnify him therefor. With his deed and the lease, he occupied precisely the position of Thayer. And we think the evidence was competent from which to find that Thayer, on the sale of the property and the transfer of the lease, placed in Woodman’s hands $300, for the use of Jones; and that Jones was not a stranger to the transaction, but assented and agreed thereto. In arriving at this conclusion, we lay aside the deposition of Foster, the admissibility of which we have not considered; neither do we take into consideration the count for use and occupation.

With a full knowledge of the consideration that had been paid by Jones for the lease, and its terms and conditions, it would seem incredible that the $300 should not be reckoned in some way between Thayer and Woodman, for the benefit of Jones. As possession of the farm was not to be acquired, by the terms of the deed, until the expiration of the time the lease had to run, it would, as a natural consequence, be sold for a less sum than if immediate possession had followed; and as the case does not find, nor is there any suggestion, that any consideration was paid for the lease by "Woodman, the most natural conclusion would be that there was an agreement between Thayer and Woodman, on the transfer of the lease, that Woodman should pay the $300 to Jones, on giving him notice to quit, and that Jones was a party to the contract. It is not necessary that there be an express agreement shown, but it may be implied from the facts in the case. Jones, Thayer and Woodman were all three connected with the lease, and taking all the facts together, we think the jury might be warranted in finding that $300 were in the hands of Woodman, by the agreement of the parties, which in good conscience belonged to Jones ; and that, consequently, the count for money had and received can be sustained.

Judgment on the verdict