Smalley v. Corliss

Poland, Ch, J. 1. The first and principal question is as to the construction of the lease from the orator to the defendant. The lease provides that Smalley is to have one-half of the gross proceeds of said farm in lieu of interest, “and to have as much property and value in hay, seed, teams, tools and stock returned to said Smalley at the expiration of said contract as he puts on to said farm and delivers over to said Corliss.” And it is again repeated in the lease, “said Corliss is to leave at the expiration of this contract upon said farm for the use of said Smalley, as much value in seed and grain, team, stock and tools as he receives from the said Smalley.” It is not claimed but that in a contract for the leasing of a farm and the stock upon it, it is perfectly competent for the parties to contract that the tenant shall insure to the landlord the return of all the ptocfe or other property on the farm, or its value, even though it may [491] be lost, or depreciate in value, without any fault on his part, or by inevitable accident. It is claimed, However, by the defendant, that such stipulation is so unusual in this class of contracts, and operates so severely upon the defendant in this case, that the language used, and quoted above, should not be construed to mean this, but only to throw upon the defendant, in case of any loss or depreciation, the burthen of proving that it was occasioned without his fault. But it appears to us that the language of the contract is so clear and distinct, and so entirely unequivocal in its meaning, that no room is afforded for a construction any more favorable to the defendant, than that he bound himself to return the property he received, or its equivalent in value, even though the loss or depreciation was wholly without fault of his. Nor have we been able to see that the clauses above cited are so controlled or modified by other provisions and clauses of the lease as to vary this plain signification. This was the construction given to the lease by the chancellor, and his allowances of items in the orator’s account, which were objected to by the defendant, we' regard as correct, with two exceptions. These are the charges of $25. for the loss on the two cows fattened and killed, and $10. for loss on the bull sold. The masters’ report states that by the mutual agreement of both parties the cows were fattened and killed in the fall of 1860, and produced but $35. which the orator had, though their value the spring before was $60. The bull was worth $25. in the spring, but by mutual agreement he was sold in the fall for but $15. The chancellor allowed to the orator his charges for these losses as properly recoverable under this provision of the lease. It seems to us this allowance was improper. This disposition of the two cows and bull, clearly excused the defendant from restoring .them to the orator at the end of the term, and, as we think, from returning any equivalent for them then. In effect it took them out of the contract of lease, and made a new contract as to them, and another and different disposition of them. We cannot say but this disposition of these animals at these prices was more beneficial to the orator than to have had them kept until spring and then returned to him. Nor can we say but such new disposi [492] tion was more detrimental to the defendant than it would have been to have fulfilled his original agreement as to them. Each party ran his own risk as to making or losing by this new ■and different arrangement as to these animals, and as that new arrangement was perfected, and carried out, neither can resort to the original provision in the lease governing them. The chancellor’s decree disallows two items of the orator’s account, Nos. 36 and 37, of $6. each, “for garden spots and firewood for Levi,” and “same for Jerry.” The lease makes no provision that the defendant’s hired men or tenants are to be furnished with firewood and gardens without charge, and as the masters find that they had such from the orator, these should have been allowed. The orator also objects to the allowance of two items in the defendant’s account, — No. 4, for work, allowed by masters at $34.50, and No. 26, for hay and straw left on the place, allowed at $50. But we think these items are not properly open to revision here. It is true that an appeal of a chancery suit brings the whole case before this court, as it stood before the chancellor, and the court may as properly vary the decree against the party appealing as in his favor. But on an appeal, this court takes the place of the chancellor, and when it would not be proper for the chancellor to disturb an allowance of masters at the hearing before him, it would be equally the duty of this court not to do so. When an account has been taken and returned by a master, regularly, either party desiring to object to the allowance of any item should file his exceptions to the masters’ report, specifying the items objected to, and the grounds of objection. On hearing, it is not the duty of the chancellor to examine items not thus excepted to, and on appeal the duty of this court does not extend beyond that of the chancellor. In this case no written exceptions were filed, but at the hearing before the chancellor, each party excepted orally to such allowances as the masters had made which he was dissatisfied with, and all these exceptions were stated in the chancellor’s decree. The chancellor was not bound to examine any items that were not thus excepted to, and on appeal from his decree, the hearing must have the same limitatioq. [493] The chancellor’s decree is reversed, and the case remanded, with directions to disallow in the plaintiff’s account, said item of $25. for “loss on two cows fattened,” and the item of $10. for “loss on hull,” and to allow to the plaintiff the two items of $6. each for firewood and gardens for hired men, and to allow the residue of accounts as in former decree, and make decree accordingly.