Angel v. Bashaw

Munson, J. This controversy grows out of matters evidenced by a contract dated October 13, 1905, by which the orator sold the defendant certain premises in Woodbury then in defendant’s possession as lessee, and agreed to build a barn thereon as soon as it could conveniently be done; and by which the defendant sold the orator four stacks of lumber in Wolcott, to be taken by the orator in the stack, and from which the barn was to be built if the defendant so elected; and by which it was further provided that as soon as the barn was built, and the quantity of the lumber determined, the orator should convey the title to the defendant, and receive notes for the balance due him, secured by a mortgage of'the premises. This agreement also provided that the quantity of the lumber should be ascertained “by counting the same in the stacks or when drawn” at the option of the orator. [255] The master finds that some of the lumber was drawn before the orator informed the defendant when it would be.measured, and without the defendant’s knowledge; that the orator after-wards notified the defendant that he would count the lumber as he drew it, and that the defendant then requested the orator to notify him by telephone at his expense when he was ready to draw, as he wished to be present at the drawing; that the orator drew more of the lumber without notifying the defendant as requested, or giving him any notice that enabled him to be present; that the orator afterwards informed the defendant that he could not tell when the balance would be drawn, owing to the uncertainty of the roads and the inability to secure teams; and that after the drawing was completed the orator so informed the defendant by letter. All the lumber, except that used in the construction of defendant’s barn, was afterwards measured in the orator’s yard by the official surveyor on the defendant’s procurement. Before any of the lumber was drawn, the defendant understood that some of it was to be taken to Woodbury, to be used in building his barn. This was measured by the orator when it arrived at Woodbury, but was not measured by the defendant until it had gone into the barn and the barn was completed. The defendant was present when it was unloaded, saw the orator measure it, and could have measured it himself if he had desired. The defendant claims that the orator’s conduct regarding the measurement was a breach of the contract which entitles him to an allowance for the lumber at its full value, regardless of the price agreed upon. It is not necessary to determine the controverted point regarding the construction of the provision for measurement, nor to inquire whether the default complained of was one which entitled the defendant to rescind the contract wholly or. in part. If the defendant had the righNto rescind, he failed to exercise it by any notice or act of rescission, but proceeded to measure a part of the lumber taken, and stood by in silence while the orator used the remainder in performance of the contract by attaching it to premises which the defendant occupied, and which the orator was required to convey to him by a provision of the contract which the defendant has always treated and still treats as in force. The defendant’s silence in these circumstances was inconsistent with any claim of rescission. [256] If defendant is entitled to any allowance it is by way of damages. But no damage appears; for the quantity is ascertained from measurements made on defendant’s procurement, or made in his presence without question, and the findings bring all the lumber within these measurements. The decree is correct as regards the taxes. The contract contains nothing on the subject. The premises were set to the orator in the grand list, and the parties are agreed in saying that this was properly done. So the orator is holden for the taxes, but as between the orator and the defendant the duty of payment rests on the latter. A vendee in possession is chargeable with the taxes assessed after his purchase. Bradford v. Union Bank, 13 How. 57, 14 Law. Ed. 49. The provisions of the decretal order which permit the payment of the taxes in the first instance by either party, without regulating the exercise of the option, do not make the order void for uncertainty or erroneous in substance. The burden upon the defendant is the same under either alternative; nothing but its form is left to be determined by the party taking action. It can hardly be necessary to provide for the contingency of a simultaneous payment or offer of payment by both parties. But if any difficulty is feared, the chancellor can properly amplify the provisions in question. Decree affirmed and cause remanded. Lei a new time of performance and of redemption be fixed below.