Legier v. Deveneau

*190 Taylor, J. The action is contract for the recovery of rent and other items embraced in' plaintiff’s specification. The trial was by jury with verdict and judgment for the plaintiff. The defendant argues among others numerous exceptions to the refusal of the court to charge as requested. These exceptions avail the defendant nothing, for the record wholly fails to show the requests relied upon. Swerdferger v. Hopkins, 67 Vt. 136, 148, 31 Atl. 153; Niles v. Central Vermont Ry. Co., 87 Vt. 356, 89 Atl. 629. The defendant excepted to the failure of the court to charge "respecting the law concerning constructive eviction.” The exception is too general to require attention; but, if noticed, it should be held that the case did not call for a charge on the subject of constructive eviction as a defense to the action for rent. The defendant remained in possession of the leased premises to the end of the term. If the acts complained of would have justified the defendant in leaving the premises, which we do not decide, they alone will not support a plea of eviction against the action for rent. Actual abandonment must accompany'the circumstances justifying it. If the tenant makes no surrender of the possession, but continues to occupy after the commission of the acts which would justify him in leaving, he will be deemed to have waived his right to abandon, and cannot sustain a plea of eviction by showing such circumstances. There cannot be a constructive eviction without a surrender of possession. It would be unjust to permit the tenant to remain in possession and escape the payment of rent by pleading a state of facts which, though conferring a right to abandon, had been unaccompanied by the exercise of that right. Leiferman v. Osten, 167 Ill. 93, 47 N. E. 203, 39 L. R. A. 156; Keating v. Springer, 146 Ill. 481, 34 N. E. 805, 22 L. R. A. 544, 37 A. S. R. 175; Warren v. Wagner, 75 Ala. 188, 51 A. R. 446; DeWitt v. Pierson, 112 Mass. 8, 17 A. R. 58; Scott v. Simons, 54 N. H. 426; Boreel v. Lawton, 90 N. Y. 293, 43 A. R. 170; Weinstein v. Barrasso, 139 Tenn. 593, 202 S. W. 920, L. R. A. 1918D, 1174; 16 R. C. L. 949, § 457. See Alger v. Kennedy, 49 Vt. 109, 24 A. R. 117; McCall v. New York Life Ins. Co., 201 Mass. 223, 87 N. E. 582, 21 L. R. A. (N. S.) 38. One item of the plaintiff’s specification was a charge for a tire and inner tube sold to one Boudreau. The plaintiff’s evidence tended to show that the defendant rented the plaintiff’s *191 garage for three months to use as a paint shop. Boudreau was working for the defendant as a painter. He had previously purchased the tire and tube in question of the plaintiff. At the time the lease of the garage was arranged the plaintiff, the defendant, and Boudreau were present; and it was agreed among the parties that the defendant would pay the plaintiff for Boudreau, whereupon the tire and tube were charged to the defendant, and sometime later the plaintiff credited the same amount on Boudreau’s account. The charge respecting this item of the specification was not excepted to. The defendant excepted “to the failure of the court to instruct the jury respecting the law concerning novation.” The exception does not point out the particular omission complained of and cannot be made the basis of reversible error. Hambleton v. U. Aja Granite Co., 96 Vt. 199, 118 Atl. 878; Morgan v. Gould, 96 Vt. 275, 119 Atl. 517. The defendant offered in evidence a letter from plaintiff’s attorney containing an offer of terms of settlement, claiming that it was evidence of the amount due. The letter was objected to and excluded on the ground that it was a proposition of settlement. Upon defendant’s asking for an exception, plaintiff’s counsel withdrew the objection and the letter was received in evidence. The defendant’s claim was that the letter stood as an admission hy the plaintiff of the amount of his claim. The circumstances attending the sending of the letter were developed. In the course of the charge, after explaining the difference between the effect of the letter intended as an offer of compromise and its effect if considered as a declaration of the amount of plaintiff’s claim, the jury were told to give the letter such consideration as on all the evidence it was entitled to. The defendant excepted to the charge “respecting the admissibility and construction” of this letter, and now briefs the claim that it was the duty of the court to construe it. The defendant has no just ground of complaint respecting this matter. The letter was plainly an offer of compromise and, as such, was improperly in the case; but the jury were permitted to treat it as evidence in the defendant’s favor. The defendant argues error in admitting certain testimony regarding a settlement between the plaintiff and defendant. The record shows that the questioned testimony was introduced without seasonable objection and exception. The defendant claims that this is due to an error in the transcript. *192 The record before us refers to the transcript for exceptions taken to the admission of evidence and makes the same controlling. If in fact there is such an error as the defendant claims, application should have been made to the trial court to have the record corrected. This Court is bound by the record submitted. Wilson v. Barrows, 96 Vt. 344, 119 Atl. 422; Halloran v. New England Tel. & Tel. Co., 95 Vt. 273, 115 Atl. 143, 18 A. L. R. 554. Judgment affirmed.