Way v. Holton

The opinion of the court was delivered by Barrett, J. It .appears that the agreement testified by the defendant, as to the credit to be given for the amount to be charged by the plaintiff for the services in question, was made before the work charged for by the plaintiff was done, and, of course, before the alleged written agreement between the defendant and Judevine was made, which the defendant offered in evidence. Such written agreement could be no ground of inference on the question of the prior agreement which the defendant testified had been made between himself and the plaintiff. It is true, that such written agreement would be consistent with said alleged agreement of plaintiff and defendant. But the fact of making such written agreement, does not lead towards the fact that the former one was made. In Buzzell v. Willard, 44 Vt. 44, as well as in Kimball v. Locke, 31 Vt. 683, the evidence offered and held proper, was to show a state of circumstances existing at the time of the contract in question, bearing on the likelihood of the making of such questionable contract. In the case in hand, it was proposed to show a state of circumstances not existing at the time of the controverted agreement, nor till some time after it. In those cases, inference was to [188] be drawn from what had occurred and was existing at the time of the transaction in question. In the present case, it was proposed to draw inference from what occurred afterwards, and in which the plaintiff in no way participated or was in privity. The evidence was properly excluded. $ As to the offset, there was no evidence showing that Van Orman had so abandoned the house as not to be accountable for rent for all the time the plaintiff occupied the room; or that he repudiated his tenancy and liability to pay rent so long as the plaintiff continued to occupy. Indeed, nothing by way of evidence is shown in the exceptions, that Van Orman abandoned the house himself .before the plaintiff left it; — though perhaps it would be fair to infer the likelihood that he did. The plaintiff is shown to have entered and to have been occupying as the tenant of Van Orman, and to have paid to him the stipulated rent for all the time he occupied. Unless, while occupying, he attorned to the defendant, such payment would discharge all liability to anybody for rent to be paid by the plaintiff. We think the charge given was quite as favorable as the defendant was entitled to have; and that the court committed no error in not fulfilling his request. Judgment affirmed.