Mack v. Dailey

MUNSON, J. The defendant did not always pay the monthly rent on the day it became due, but the plaintiff accepted it when paid without objection. This acceptance was a waiver of the right to treat the failure to pay when due as a breach of the stipulation. Having thus performed his stipulations as lessee, the defendant was entitled to the benefit of the agreement to sell. The provision that the lessee may. buy at the option of the parties clearly means at [92] his own option, and would add nothing to the contract unless so construed. The defendant seasonably made known to the plaintiff his election to take the premises as purchaser. So the holding complained of was not against the plaintiff as lessor, but against him as vendor. The question being one between vendor and purchaser, this remedy is not available. Davis v. Hemenway, 27 Vt. 589; Pitkin v. Burch, 48 Vt. 521. It is not necessary to consider how the plaintiff’s obligation to convey may be affected by the proviso contained in the agreement to sell. The defendant cannot be compelled to litigate his rights under that agreement in this proceeding. Judgment affirmed,.