Brown v. Burrington

Aldis, J. Burrington took a farm of Collins at the halves. Collins was to put upon it a yoke of oxen to do the farm work. 1. Barrington used the oxen on the farm for the exclusive benefit of his landlord. While so in use the landlord claims, that Burrington should not bo entitled to half the value of their use, but that he (the landlord) should have their use for nothing. This claim does not appear to us to bo just. The tenant had to furnish half of their keeping, and to take care of them.- A3 there was no stipulation as to their use by the landlord, he could not require them to be used for his benefit. The tenant had a right to have them at wort where ho could receive a share cf their earnings. In the absence of a stipulation as to the terms on which they might be used for the solo benefit of the landlord, we think he should allow the tenant for 'one-half of their use. 2. So, where the tenant worked with the oxen off of the farm, for the same reasons, the earnings of the oxen should be divided. 3. During the year, — in August, — the landlord and tenant agreed that the oxen should be sold ; — it being for the benefit of both. After that Collins furnished no team to do the work. Team work becoming necessary, the tenant hired a team to do it, and paid for it, and has charged what lie paid to Collins. They made no agreement when they sold the oxen as to how the team work should be done, and who should furnish it. As the sale of the oxen was with the consent and for the mutual benefit of both, we think it can not be deemed a waiver of the original stipulation that Collins should find a team to do the work. The fair inference is that Collins was to continue to furnish the team work for the farm when necessary ; — and that he took this into consideration in determining whether it would be best to sell the oxen. 4. The tenant paid twenty cents for four pounds of nails, which he used for necessary repairs, without any authority from his landlord. The charge is for so small a sum that it deserves no attention if it were not that the allowance of it might be deemed a sanction of the principle that a tenant can make neeq$s [44] sary repairs on a farm without the authority of the landlord and. at his expense. Necessary repairs which are of a permanent character — whose value and use extend beyond the year, and inure mainly to the benefit of the landlord — can not be made upon the -farm by the tenant at the expense of the landlord without the landlord's express consent and. authority. Otherwise landlords might find their whole rent exhausted by necessary repairs, or as an English Judge expresses it when speaking of allowances for “ reasonable improvements,” so called, “ gentlemen might be improved out of their estates.” The owner of the farm has a right to determine whether repaii’s of this character shall be made or not — to what extent and at' what price ; — the lease can not be deemed to delegate such an authority to the tenant. The tenant before -taking the lease can examine the premises and decide for himself whether he can stay with his family through the term and can protect his crops without repairs other than such as he can afford to make ; and- can stipulate for necessary repairs or refuse to take the lease. We do not say, however, that necessary repairs may not be made by the tenant at the expense of the landlord and without his consent, where a sudden and unlooked for emergency requires it, and the expense is necessary to save the crops, or otherwise protect their common interests, and when the landlord can not be consulted, and the expense is reasonable. But such cases are exceptional. As nothing is said in the report to show that this charge belongs to this class, it- must fall within the general rule and be disallowed. 5. The tenant was to occupy the farm according to the usual cxxstom of such tenancies.” The sugar orchard and its products should be governed by such custom. As by cxxstom the landlord is entitled to half the sugar only when he furnishes the necessary utensils of sugar making, the commissioner in this 'case properly allowed him only what the sugar place and trees were worth. 6. Burrington was bound by the agreement to find stock fop the consumption of the hay on the place. It was an important stipulation for the lessor, and conducive to good husbandry. The [45] tenant did not feed out the hay on the place, but carried away 'two and one-half tons- He thus broke his contract, and the landlord may recover his damages for such breach, and we think that they are properly allowable here. It is not a tort, but a breach of contract, for Which the $3.00 was allowed. 7. The piece of standing grass was sold by consent of both landlord and tenant. Each, before it was cut, was entitled to half 'of it. By consenting to sell it the landlord consented to waive the benefit he would have derived from the tenant’s labor in cutting it. The commissioner erred in treating it as belonging wholly to the landlord. The credit of $1.00 to Collins by Niles appears to have gone to his benefit. 8. The main question in the case is. Was the wife of the principal debtor admissible as a witness against the trustee? The commissioner admitted her to testify, and upon her evidence alone allowed several items against the trustee, and disallowed several items which he claimed. The reasons for excluding married women from testifying for or against their husbands have been, first, that their husbands were interested in the matters to which they might testify, and secondly, that good policy required that the intimacy and harmony of married life should not be invaded or jeopardized by requiring the wife to be examined and cross-examined as to matters affecting the husband’s interests or business. After the statute was enacted in this state allowing persons who were interested to testify, our courts still held that though the husband was not disqualified on account of his interest in the suit from testifying, still the policy of the law would exclude the wife. Manchester v. Manchester, 24 Vt. 649 ; Smith v. Potter, 27 Vt. 308; 31 Vt. 509. Our more recent legislation in specifying particular cases in which the wife may testify for the husband assumes by implication that in other cases she may not. In the case at bar the inquiries pertained to the dealings between the husband as tenant and the trustee as landlord. They, were inquiries which, if pursued, would lead to an investigation of the husband’s conduct and management of the farm, — of spe [46] cial contracts in regard to sucli management, and almost by inevitable consequence to his declarations as well as to his acts. It is plain to us that the examination and cross-examination of tho wife upon such points would trench upon the policy of the law. Nor arc wo prepared to say that tho husband, though only tho principal debtor and defaulted, might not bo interested in the judgment to be rendered upon the trustee’s liabilities to him. Upon the ground of policy alone, wo think she should have been excluded. Allowing and disallowing items upon the basis we have thus indicated, the balance due from the trustee is only $3.22, and this being less than the sum of $10 for which he can be adjudged liable, the judgment of tho county court is affirmed.