Brown v. Magorty

Allen, J. The original declaration was on an account annexed, which contained one item for two months’ rent, and the judge rightly ruled that the rent was recoverable under such a count. Bowen v. Proprietors of South Building, 137 Mass. 274. The defendant, having at his own request been permitted to remain in possession of the premises till about May 9th, was liable to pay rent for the time he so remained in possession. Pub. Sts. c. 121, § 3. The amended declaration set forth an agreement by the defendant that the manure made by the stock kept upon the farm should be used on the farm for the enrichment and improvement thereof, but that he did not keep this agreement, and sold and caused to be removed large quantities of manure in violation of said agreement. The verdict of the jury shows that this agree 211 ment and the breach thereof were proved. But the defendant objected that the only remedy of the plaintiff was by an action of tort for the conversion of the manure. An action of tort no doubt would lie; but this does not exclude the maintenance of an action of contract upon the express agreement, and such actions have often been maintained. 1 Chit. PI. (16th Am. ed.) 114,159; 2 lb. 187-190. 1 Chit. Con. (11th Am. ed.) 471, 472. Legh v. Hewitt, 4 East, 154. Powley v. Walker, 5 T. R. 373. Massey v. Goodall, 17 Q. B. 310. Westropp v. Elligott, 9 App. Cas. 815. Batthyany v. Walford, 36 Ch. D. 269. Lewis v. Jones, 17 Penn. St. 262. See also Chalmers v. Smith, 152 Mass. 561. No question arose as to the statute of frauds, which was not pleaded. Middlesex Co. v. Osgood, 4 Gray, 447. And no question is argued as to the rule of damages. Exceptions overruled.