Ten Eyck v. Houghtaling

By the court—Gould, Justice. Had this case been decided on the argument; or on the points made, and authorities cited, to the court, I should certainly have held, that where there is a sealed covenant there is neither the necessity nor the power of implying any contract; inasmuch as to imply one different from the sealed one, would be to contradict the contract made by the parties; and to imply one the same as the sealed one would be needlessly absurd. And, of course, it would have been decided that the sealed covenant to pay rent is itself the cause of action/ as, in covenant for rent, it was not necessary to allege (or prove) even an entry (by lessee) on the premises, or any occupation at [529] all; c< for, though he neither enters nor occupies, he must pay the rent; it being due by the lease or contract, and not by the occupation.” (1 Saund. Rep. 203, note 1.) But it so happens that an action for rent accrued, (and that ■ only where a party elected to bring debt for it, and not covenant,) was, at common law, a case, and the only case, in which, where there was a contract under seal, a plaintiff could declare generally, and produce his deed in support of such declaration. (1 New Rep. 109.) In this very case, however, it is decided that, where there was a contract by deed, it was “ absurd to contend that the action is not founded on a deed, because if there had been no deed, the action might well have been maintained without it.” The reason for this distinction, however, is not to be found in the authorities I have cited. But in Gould’s Pleading, pp. 310, 311, (Chap. 6, Part 1, §§ 11, 13,) it is distinctly set forth, in showing why “ nil debet” is a good plea to an action of debt for rent due on a deed of lease. The deed is said, then, to be pleaded only as inducement to the action; “ the subsequent occupation of the defendant, under the demise, is the gist of the action; because rent is considered as a profit, issuing out of land; and when it is sued for, as a debt, the law considers the debt as arising out of the receipt of the issues and profits by the tenant, and not from the deed.” This opens a way for applying the provisions of the Code to the casé at bar. For, were this case of rent due, not the exception, and the only one, to the rule, that the covenant is the cause of action so absolutely that you must declare on it; it would be in vain to attempt to apply § 69 as having abolished forms of action; or § 140 as having abolished forms of pleading: there not being any section that abolishes causes of action; or one that has been entirely able to confound them. But since, (for the reason above quoted,) a plaintiff may elect, in such a case, to sue on the covenant, and by so doing make the covenant his cause of action$ or to sue for the debt, and by so doing make the “subsequent occupation” his cause of action—“the gist of the action ”)—and since, in this case, he has sued for [530] the debt, thus making the subsequent occupation his cause of action, it must be decided that he has well pleaded a cause of action ; and that being entitled so to plead this cause of action, the evidence was adapted to the pleading, and the proof of the sealed lease was of no effect, in the way of making a variance from the complaint, or for any purpose except to establish the relation of landlord and tenant, and to show the amount of the debt; and for these purposes it was proper. As to the allowance of interest, I am not disposed to set aside the report for that reason. Where money has been really due, the party unjustly withholding it ought always to pay interest. And nothing but a positive and inflexible rule .would compel me to decide to excuse him from it. So far from there being any such rule applicable to this case, the law is well settled in accordance with the referee’s decision. (2 Com. 135.) I have been unable to find, in the case, anything to warrant the allowance, for the last two years, of the ten dollars (in each year) for fuel used, as there is no proof that, for those years, the defendant used the fuel; and- his agreement to pay for it did not apply to those years, unless he used it. As to the hay-press, (were I to find a fact,) I should certainly prefer to have more evidence, and clearer, to satisfy me of its actual sale; especially as. it is entirely clear that the defendant never actually took possession of any part of it; nor was it even on his premises. There is no justice in this allowance ; it is not equitable; and I doubt its strict legality; {see 3 Hill, 141;) as plaintiff declared for it as “ sold and delivered.” I should order a new trial, unless the plaintiff reduce his judgment, by deducting the two items for fuel, of $10 each, and interest, and the $30 and interest allowed for hay-press.