Scott v. Fuller

The opinion of tire court was delivered by Gibson, C. J. It is certainly true, as argued for the defendant in error, that the rent need not be reserved in words which define its quantity, quality, and duration; but that it is within the terms of the act when it is susceptible of such certainty from extrinsic matters, as to enable the landlord to recover it. Where the con [56] tract affords reciprocal remedies, there can be little difficulty in' pronouncing on the relation created by it; and this, as- was intimated in Blashford v. Duncan, is all that the legislature' intended to1 require. And this question of reciprocity, is determinable by the rules of the common law. A reservation is sufficient in this respect, wherever certainty can be had from circumstances dehorsf as in the case put in Co. Lit. 96 a, of shearing all the sheep depasturing in the manor of the lord, because their number may be precisely ascertained. And such is the principle of Shaffer v. Sutton, in which the render, being payment of the taxes, and chinking and daubing the house, was susceptible of accurate ascertainment. But payment of a rent, which is uncertain by the terms of the lease, and incapable of being ascertained by reference to anything else, cannot be enforced, either by distress or by action. Thus it was held in Parker v. Harris, 4 Mod. 77, that a reservation on a demise at will, “paying after the rate of £18 per annum,” is bad; though it would seem from Cole v. Surry, Latch. 264, that if the nature of the rent were1 specified, the rest would he certain enough; and at this day, it would perhaps be taken for a sum of money payable yearly. But the case pot by Littleton, Sect. 136, of the disability of the lord to distrain his tenant in Frankalmoigne, for omitting to perform divine services* uncertain both in time and number, is in principle..the present case, in which the demise was for twelve days,- and, in the words of the inquisition, “under the rent of taking Care of thé grain of Fuller on the place, and keeping out the cattle.” What grain, and what cattle? The grain on the farm, dotrbtleS3. But that leaves the kind uncertain — whether wheat, rye, buckwheat, and oats; or pulse, barley,- millet, spelt, and Indian corn; whether growing in the fields, or put up in shocks, or stowed away in .barns, or deposited in' garners; and whether it were to be protected from cattle only, or from vermin. The enclosures or places, ^ too, out of which the cattle were to be kept, are altogether uncertain — whether the stables, the meadows, the fields lying fallow or with grain in them, or the open' grounds. In common parlance, the words import a general care, so various in its application and so indefinite in its degree, that to enforce it by distress, would be impracticable. Nor could an action be maintained on the contract. In Sherman v. Kitsmiller, 17 Serg. & Rawle, 45, a promise, in consideration of service or marriage, to give “one hundred acres of land,” without reference to any particular tract, was held void for uncertainty. Yet it was at least as definite as an undertaking to keep out cattle and take care of grain. Though a promise to give bond for £40, without specifying the penalty, has been held good, on the ground, that double the sum shall be intended, 1 Lev. 38, it has been determined that an undertaking to prepare; [57] a bond for performance of a covenant io pay two shillings the seam for such bark as the plaintiff should cut, is void, because the number of seams being uncertain, no particular sum can be intended. 1 Sid. 270. At this day the same degree of certainty would hardly be reqúired; yet though the words of the party promising are to be takén most strongly against himself, and certainly to a common intént be all that is essential, the contract will be invalid, if it be not only uncertain in its terms, but incapable of deriving certainty from some thing else. ít seems therefore, there was no reservation of any thing that could be recovered by action, or enforced by a distress ; and that the landlord was not entitled to the summary remedy provided by the legislature. Judgment of the Common Picas reversed, and proceedings of the justices quashed*