Amsden v. Atwood

ROWELL, J. As the facts now appear, the tenancy in question does not differ in legal quality from what it was as the facts appeared when the case was here before; 67 Vt. 239. It then appeared that the defendant held over by constructive consent after the expiration of his lease for years, which holding was held to be a tenancy at will in its inception, but to have ripened into a tenancy from year to year, for that the plaintiff elected by taking rent to recognize the defendant as his tenant for a full year, and allowed him without objection to enter upon a second year. Now it appears that the defendant continued in possession after the expiration of his said lease, under an oral agreement between the parties, made before its expiration, that he should occupy as a tenant from year to year under and according to the provisions and conditions of his written lease. In other respects the facts appear in substance as they did before. Under the statute, said oral agreement created a tenancy at will only, V. S. s. 2218. It makes no difference whether the tenancy at will arose from a holding over by — 333 — •constructive consent, or resulted from the express oral agreement found, for in either case it was equally a tenancy at will in its inception, and equally capable of ripening into a tenancy from year to year. It is objected that the finding of the oral agreement is vitiated by the admission of oral testimony to support it. But if it is, on the ground that the Statute of Frauds is as applicable when rights resulting from and dependent upon the -contract are sought to be enforced as when the contract itself is relied upon for recovery, yet the case would be the same, for there would still be a tenancy at will, resulting, as it appeared before, not from an express oral agreement, but from a holding over by constructive consent. This being so, the former decision that the tenancy at will had ripened into a tenancy from year to year must stand, for the court will not reconsider a decision made by it in the same case on a state of facts not different in legal effect. Stacy v. Vermont Central R. R. Co. 32 Vt. 551. It is claimed that the defendant cannot stand on his declaration in offset, for that the first count declares upon the written agreement, whereas an oral agreement is found; and for that the second count declares upon an extension of the written agreement, which being found to have been done •orally, brings the case within the Statute of Frauds. But although the first count recites the written agreements, which constituted the written lease between the parties, it does not •count upon them as the cause of action, but upon a state of things to which said agreements are but inducement, alleged, in effect, to have taken place by tacit consent after the expiration of the written lease, which, as matter of law, it is claimed, continued obligatory upon the plaintiff, to and including the time of its alleged breach, the stipulation in the léase to saw the defendant’s logs ; and if the legal result of the things alleged is as claimed, the finding of the oral agreement makes no difference, for the same result would follow without it. — 334 — The second count, to show that the stipulation to saw was-obligatory on the plaintiff at the time of its alleged breach on December 20, 1892, alleges an extension of the written lease, with all its stipulations, for the term of one year from-November x, 1892, by mutual agreement of that date, and an entry by the defendant and occupancy thereunder until' the time of the alleged breach. The agreement alleged was not proved, and if oral, was not provable under objection, as it would be within the Statute of Frauds ; and if proved, it would not be effective to extend the lease a year, as-it would create a tenancy at will only, and if it had been alleged to be oral, the count would be demurable. The defendant cannot, therefore, stand on this count under an oral agreement of the character alleged. The original lease contained a stipulation that the plaintiff would saw the lessee’s logs into lumber as desired at a price per hour to be agreed and indorsed on the lease, which should be less than the regular price. On April 1, 1890, which was before the expiration of the lease, the defendant took the place of the lessee, and by a paper writing of that date for that purpose, executed by the plaintiff and the defendant, the lease was somewhat modified and the term extended to November 1, 1891, with an option on the part of the defendant, which he declined to exercise, of a further extension. It is claimed that as the price agreed for sawing was never indorsed on the lease, no usage nor practice between the plaintiff and defendant before the making of the oral agreement found by the jury is of any force, and that .the sawing done after November 1, 1891, was wholly outside and independent of the two written agreements, and that the defendant had no legal claim on the plaintiff to have any sawing done. But the things alleged in the first count to show the continuance in force of the stipulation to saw, áre the things that were held before to have ripened the tenancy at will into a tenancy from year — 335 — to year, which last-mentioned tenancy is as effective to keep that stipulation on foot without an indorsement of the agreed1 price as was the agreement of April i, 1890, which was held to have extended the lease, with all its covenants, except so far as they were thereby changed. The tenancy i& thus effective, because, when a tenant holds over without a new agreement, and the landlord recognizes him as still his tenant, the holding is taken to be on the terms and conditions of the original lease. The same result would follow if effect is given to the oral agreement found, for by that the occupancy was to be under and according to the provisions and conditions of the two written agreements. It follows,, therefore, that the stipulation in question was in force at the time of its alleged breach, and the question arises whether there was any evidence tending to show a breach, the court below having ruled that there was none. The testimony tended to show that on December 20 the plaintiff refused to saw defendant’s logs unless he would comply with a request that he had no right to make and with which the defendant refused to comply, and that at the time, the defendant had logs on the log-way that he desired to have sawed then, to the knowledge of the plaintiff; but he did not actually tender any logs at the saw, nor formally request that the sawing be done. It is claimed that each party was to perform at the same time, and that the defendant must have actually brought and tendered logs at the saw before it was the duty of the plaintiff to saw them. But such is not the law. When concurrent acts in the nature of mutual conditions precedent are to be performed, readiness- and willingness to perform on the part of one party is sufficient to impose the duty of performance on the other party. This doctrine is so well stated in Smith v. Lewis, 26 Conn, 110, that we quote from the opinion of the Chief Justice in that case: “Some misapprehension or confusion appears to have — 336 — arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties as applicable to the case of mutual and concurrent promises. The word tender, as used in such a connection, does not mean the same kind of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, when the money is offered to a creditor who is entitled to receive it and nothing further remains to be done and the transaction is completed and ended ; but it means only a readiness and willingness, accompanied with an ability, on the part of one of the parties, to do the act that the agreement requires him to perform, provided the other will concurrently do the things that he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability, and notice are sufficient evidence of, and indeed imply, an offer or a tender in the sense in which those terms are used in reference to the kind of agreements we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is in its nature conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform .his part of the agreement.” In Morton v. Lamb, 1 H. Bl. 125, Grose, J., says it is difficult to reconcile all the cases on the subject, but that the good sense to be extracted from them all is, that if one party covenants to do one thing in consideration of the other party’s doing another, each must be ready to perform his part of the contract at the time he charges the other with non-performance. The same doctrine is stated in Swan v. Drury, 22 Pick. 485, and in Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 180, and aptly illustrated by the case of Cort v. Ambergate &c. Railway Co. 17 C. B. 17, which was for the breach of a contract to manufacture and supply goods of a special kind, to be delivered in certain quantities monthly, and the buyer, after accepting a portion of the goods, gave notice to the seller that it had no occasion for more and would not accept nor pay. for them; and it was held that the seller might claim for a breach of contract — 337 — without manufacturing and tendering the rest of the goods. Prom this case we deduce the principle that the promisee may treat a renunciation made in the course of performance as a discharge from further performance on his part, and thereupon bring an action, although such performance would otherwise be a condition precedent to the liability of the promisor. And this proposition is sustained by the cases generally. Derby v. Johnson, 21 Vt. 17 ; Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 509; Parker v. Russell, 133 Mass. 74. .But if this is nota casein which concurrent acts in the nature of mutual conditions precedent were to be performed, but a case in which performance by the defendant was a condition precedent to performance by the plaintiff, yet actual performance by the defendant is not necessary, but that which is equivalent to performance or an excuse for non-performance is sufficient. 1 Chit. Pl. 326; Gould’s Pl. Chap. IV, s. 13, It is not necessary for present purposes to consider the effect of the plaintiff’s notice to the defendant of December 26, and the latter’s claimed action thereunder. Judgment reversed and cause remanded.