Proctor v. Wiley

Written Lease under Seal. Offset. Evidence. The plaintiff rented his farm to the defendant by lease under seal, one of the conditions of which was, that the defendant was to board the plaintiff and his wife ; and if either of them were sick, he was to receive extra pay. The plaintiff’s wife was injured and the defendant put to additional expense in caring for her. In action of assumpsit, offset was pleaded, and a declaration in book account filed. Held, 1. That the defendant, under Ms declaration in boolc account, could not recover the charges for his extra services, as they are dependent upon the conditions in a sealed instrument. 2. That he could recover certain items of his account, not connected with any of the stipulations in the lease. 3. One of the plaintiff’s charges was for the use of a sugar lot. This lot was not included in the written lease of the farm. Parol evidence was admissible to prove that the plaintiff, just before the contract was executed, told the defendant, as an inducement to make the contract, that he could have the use of the sugar place with the farm.

Assumpsit. The defendant filed his declaration on book account in offset; an auditor was appointed, and the case was heard on his report by the court, December Term, 1881, Taft, J., presiding. Judgment for the plaintiff to recover $112.40. The auditor found: That the plaintiff rented his farm to the defendant by a written lease under seal; that the following was one of the stipulations of the lease: “And the said E. M. Wiley shall board the said Amasa Proctor and his wife during said year; and if they are sick or lame, shall take care of them; and if they are very sick or lame, so as to require extra help, the said Amasa shall pay for all necessary extra help, and all necessary doctor’s bills ; and the ■ said E. M. Wiley shall pay to the said A. Proctor at the end of the year $35”; that sometime during the year the plaintiff’s wife received severe injuries in her knee and hip; that by reason of 'these the defendant was put to extra care and expense; that the items in his account, Nos. 31, 32, 33, were made up of this extra expense, paying hired girl, <fcc. ; that the defendant was entitled to recover on these three items $107.14, if he could recover at all under his plea. The following is a fair specimen of the first thirty items of the defendant’s account: (1.) one horse blanket, ninety c'ents ; (2.) two and one-half days mending fence, $2.50 ; (3.) grass seed, $2 ; (4.) going after yearlings, fifty cents ; (5.) driving cattle to pasture, fifty cents; (6.) drawing ten loads of hay, $5. The auditor allowed these thirty items, as charged, at $48.01, and the first four items of the plaintiff’s account (corn meal, $5.25 ; clover seed, thirty cents ; grass seed, twenty cents ; keeping three horses, $2,) at $7.75, leaving due the defendant on these the sum of $40.26. The plaintiff claimed to recover $15 for the use of a sugar lot not included in the lease. The charge was not allowed. The defendant, against the objection of the plaintiff, was permitted to prove by parol evidence, that, on the day the lease was executed, and before its execution, when objection was made to taking the farm because there was no sugar place on it, the plaintiff told the defendant that he had a good sugar lot on the Bartlett farm, and that defendant could have the use of it. The auditor found: “ The said Proctor did not make any claim before me to be allowed said thirty-five dollars rent as a matter of account, and declined to present it as such ; but the said Wiley having introduced the sealed contract in evidence, the said Proctor claimed that the thirty-five dollars extinguished and paid thirty-five dollars of Wiley’s account, so that so much of Wiley’s account could not be recovered for in this action. The said Wiley offered to have the same allowed in this accounting, but claimed that the same should be only allowed towards items thirty-one, thirty-two and thirty-three, and that unless these items were adjusted in this action the thirty-five dollars should not be allowed.”..... “ It appeared from the testimony of both parties that the understanding between them was, that whatever balance of account the said Wiley had against said Proctor was to be applied in payment of the thirty-five dollars rent specified in the sealed contract, and if said account exceeded thirty-five dollars, the said Proctor expected to pay the said Wiley in money the balance.” The defendant cannot recover under his plea items thirty-one, thirty-two and thirty-three. Huxley v- Carman, 46 Vt. 462; R. L. s. 1203 ; Bliss v. Allard, 49 Vt. 350; Albee v. Fairbanks, 10 Vt. 314; Ganaway v. Miller, 15 Vt. 152; Matthews v.-Tower, 39 Vt. 438. In Gleason v. Briggs, 28 Vt. 135, the auditor found an express agreement to chargé in account. Chamberlain v. Farr, 23 Vt. 265 ; Rob. Dig. 113. Book account will lie to recover for items properly chargeable on book, though they accrued under a contract special as to the time and manner of performance, or the time and manner of payment. Kent v. Bowker, 38 Vt. 148 ; Austin v. Wheeler, 16 Vt. 95 ; Stearns v. Haven, 16 Vt. 87 ; Eddy v. Stafford, 18 Vt. 235 ; Porter v. Monger, 22 Vt. 191; Waterman v. Stimpson, 24 Vt. 508 ; Newton v. Higgins, 2 Vt. 366 ; Fry v. Sly field, 3 Vt. 246. The courts have gone so far as to hold that rent for the use of land may be recovered in book account, where it was understood that it was to be so charged and claimed on trial. Farrand v. Gage, 3 Vt. 326 ; Case v. Berry, 3 Vt. 332 ; Gunnirson v. Bancroft, 11 Vt. 490 ; Gleason v. Vt. Central R. R. Co., 25 Vt. 40 ; Chamberlain v. Farr, 23 Vt. 265.