Administrator of Cilley's Estate v. Tenny

Aldis, J, This is an action of account. It is brought by the administrator of the intestate to recover of the defendant for what he has received more than his just share of the profits of a farm let by the defendant to the intestate upon shares. The questions in issue all arise upon items in the defendant’s account presented in offset. I. The court below allowed items to the amount of nine dollars [404] and fifty cents, growing out of a verbal contract between the parties. The plaintiff objects that the lease was in writing, and that this alleged verbal contract was an agreement contemporaneous with, and differing from, the lease. Negotiations and agreements anterior to, or contemporaneous with, the execution of the lease, should be excluded. But subsequent agreements are not within the rule. It'is true, however, as to subsequent agreements, that the fact, that they are subsequent, should clearly appear; 3 Phil. Ev., Cow & Hill’s Notes, 1477; 1 Greenleaf’s Ev., § 303, § 304. The auditors state that the parties made a contract in writing, and set forth its terms. They then proceed: “the said parties subsequently, and on the same day, and before they had separated, made a verbal contract,” etc. Upon this statement the county court held that the verbal contract was subsequent to the lease; and although it added a new term to it, yet such new term was binding upon the parties. We can not say, as matter of law, that a verbal contract hould not have been made on the same day they made the lease and before they separated, and yet be clearly subsequent to the exe. cution of the lease. It would depend upon various facts attending the transaction. The inquiry at once arises, how long were they together, when was the lease made and delivered, what was then said, when was the verbal contract made and what was then said, did they do any other business ? etc. These inquiries were, without doubt, made before the auditors, and the facts in regard to them should have been embodied in their report. As it is, we have only their conclusion, not the facts upon which it is based. As the county court saw fit to accept the report and allow the items as standing upon a subsequent agreement, we can not say that- their decision herein was erroneous; for the auditors have so found the fact. Yet it is obvious that there is danger in leaving auditors to report their conclusions in such general terms. The precedent is not to be encouraged. The facts attending the transaction, and which are relied upon to show that the parol agreement was subsequent, should have been specially reported, so that the court might be able to decide whether in fact the agreement was* or was not subsequent. [405] It is said the subsequent agreement was without consideration. Clearly, it was for the benefit of both parties. The deceased, if his health failed, was thereby released from the burden and expense of carrying on the farm. The defendant was enabled to resume the direct control of it, without the risk of having it pass into the hands of a sub-tenant to whom he might not be willing to have it underlet II. The court below allowed two items charged by the defendant “as damages from not hoeing corn and not mending fence, ten dollars.” This action of account is brought by the administrator of the tenant against the landlord for having received more than his share of the profits. The defendant raises no objection to the form of the action, but is content to proceed with the accounting. Upon what basis is the account to be taken ? Upon that of the agreement between the parties. It was a letting for one. year upon shares. It has been repeatedly held that account lies between landlord and tenant upon such a contract; Albee v. Fairbanks, 10 Vt. 316; 15 Vt. 152; 18 Vt. 350; Aiken et als. v. Smith, 21 Vt. 172. Nor does this stand upon the language of our statute alone, and the fact that they are, by agreement between themselves, tenants in common; but. upon the doctrine of the common law that by such contract the tenant is bailiff of the landlord. In Albee v. Fairbanks, Redfield, Justice, says, “the defendant is liable in account at common law, and may be charged as bailiff of the common goods.” By such a contract the tenant becomes bailiff by agreement, as much so as if “ particularly appointed,” to use the language of the old books. At common law a bailiff, unlike a receiver, is liable as well for what he might have received by using reasonable care and diligence, as for what he has received; Co. Litt. 172, a; 12 Mass. 149; 11 Vt. 321; Willes 208; 9 L. &. E 337. This liability here exists, not only from the nature of the relation, but by the express agreement of the parties. The “ damages,” so called, grow out of the lease. The profits coming to the lessor were diminished by the amount of ten dollars, through the failure of the lessee to do Ms duty under the lease.. In taking [406] the account, it would not be just to allow the tenant bis share of all that was in. fact received, but release him from liability for profits which he might have made with ordinary diligence, but which have been lost through his negligence. Such loss of profits should, both in justice and by contract, be charged to him in the account. N or is there any reason why such loss of profits should not be accounted for in this form of action. As account is the proper remedy for most of the controversies which grow out of such tenancies, it is proper that all matters of accounting between parties to such contracts should be adjusted in the same action. It is reasonable that the accounting by the parties upon such a contract in a court of law, should proceed upon the same basis that it would if the parties were to get together by themselves and without suit settle the same matters, viz: upon the basis of what had been received, and what ought to have been received by using reasonable care and diligence. They are not less the proper subjects of an accounting because they are called damages. The decisions of our courts upon this subject have uniformly favored the application of this action to the adjustment of all the controversies arising upon such contracts, as to the joint interests of the parties; 15 Vt. 152; Joy v. Walker, 29 Vt. 260. III. As this is an action of account, the items of book account were properly disallowed. The statute, which allows items of account to b'e adjusted in book account, does not operate vice versa to allow the adjustment of items of book account in account. Judgment affirmed.