Summary
In Sperry v. Miller (16 N.Y. 407) it was held that a surrender of a lease did not extinguish the right of action for rent already accrued.
Summary of this case from Vernon v. BrownOpinion
December Term, 1857
M.S. Newton, for the appellant.
J.C. Cochrane, for the respondents.
The appellant's counsel claims that, on the former appeal, this court held in effect that the making of the contract of April 2d 1846, and the receipt of May second, indorsed on the contract, constituted no evidence proper to be taken into consideration by a jury, with other testimony, on the question whether the installment of rent sought to be recovered had been paid or satisfied. But in that he is mistaken. On the first trial of the action the plaintiff was nonsuited; and on the appeal to this court from the judgment rendered on the nonsuit, the only question before the court was, whether the contract and receipt indorsed thereon, unexplained, proved that the claim for rent had been paid or canceled, or, in other words, whether the evidence that it was paid or canceled, furnished by the contract and receipt, was of that conclusive character which authorized the judge presiding at the trial to take the case from the jury and pass upon it himself. The court did not hold that the evidence was not sufficient to be submitted to the jury, and to authorize them to find therefrom that the rent had been paid, as no such question was presented by the case.
On the last trial it was shown that the plaintiff actually paid the $550 when the receipt for that amount was given, consequently no presumption remained that the installment of rent was accounted for and allowed as a part of that payment. But the facts remained, that the day after the rent became payable the plaintiff bound himself to pay to Miller $550 in one month thereafter, and at the expiration of the month paid the amount. It is at least singular that he should do so, when at the same time $65 was due and payable to him from Miller; when his acts were perfectly consistent with the supposition that the $65 had been previously paid. That it was competent to submit these circumstances to the jury, on the question whether the $65 had not been previously paid, and for the jury to consider them with the other testimony bearing upon that point, does not, I think, admit of a question. The only question in the case was that of payment; and that there was sufficient evidence on that subject to be submitted to the jury was virtually conceded on the trial, as the court was not asked to take the case from the jury, and the plaintiff's counsel asked the court to charge that the plaintiff was entitled to recover, unless they found from the testimony of the three witnesses called by the defendant that the rent had been paid. That the judge was right in refusing so to charge I have endeavored to show above.
The judge charged the jury, in substance, that whether the payment of the rent was to be presumed from the fact that after it became due the plaintiff paid $550 was a question of fact for them to decide, and this part of the charge was excepted to. Whether this instruction, taken separately from the remainder of the charge, can be sustained, depends upon whether, in case the defendant had not introduced the oral testimony of the three witnesses called by him, the jury would have been authorized to find as they did; or, in other words, whether, in such case, the judge would have been justified in directing a verdict for the plaintiff for the amount claimed, thus taking the case from the jury. I do not think it is necessary to pass upon that question. In the instruction complained of, the judge did not direct the jury affirmatively that they could find the rent paid solely from the fact that $550 had been paid, and this part of the charge is immediately followed by the direction that they had the right to take these circumstances (the making the contract and payment on it of the $550) into consideration, in connection with the testimony given by the defendant with a view of showing payment of the rent, and from the whole to determine the question of payment. From the whole charge the jury could not but have understood that they must take into consideration all the evidence in the case, as well the testimony of the witnesses introduced by the defendant as the other circumstances, in determining the question of payment. In considering whether a single proposition contained in a charge is erroneous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the context, is erroneous, yet a new trial is not to be granted for that cause, when it appears, as in this case, that the jury could not have been misled thereby.
On the whole, I think that the judgment appealed from should be affirmed.
I think it a fair construction of what took place at the trial to consider the plaintiff as having claimed that there was nothing to submit to the jury and that the judge ought to direct a verdict in his favor; and the question is whether it was a case calling for such a direction. On the former trial the plaintiff was nonsuited, and we held that decision erroneous. The rent claimed having become due and payable was not affected by the surrender; and the other collateral terms of the agreement made on the occasion of the surrender, including the payment by the plaintiff of the $550, did not amount to a release or discharge of the rent which had accrued. But the defendant had pleaded the general issue, under which payment might be given in evidence, and he was entitled to submit to the jury any facts from which it would be lawful for them to find that the defendant had paid the rent, if there were any such facts in the case. I am of the opinion that the jury might fairly presume from the facts given in evidence that the rent now sued for had been paid. By the lease the defendant bound himself to pay the plaintiff semi-annually the sum of sixty-five dollars for rent. On the 1st of April, 1846, a semi-annual payment became due. There is no direct evidence whether it was then paid or was suffered to remain in arrear; but on the next day an arrangement was made by which the claim for the future rent to the end of the term was adjusted. The surrender of the lease was in effect an agreement to accept that arrangement in lieu of the rent afterwards to become due. Now, it is well settled that where rent is specifically received for a subsequent period, the presumption is that the prior rent has been paid. ( Decker v. Livingston, 15 John., 479.) By the terms of the agreement of surrender the plaintiff was to have all the crops growing on the farm. These were to some extent the fruits of the cultivation of the premises during the time this rent accrued. It is somewhat improbable that such an agreement would have been made if the rent were left unpaid. But what is more important, the plaintiff agreed to pay the defendant $550 on the first of May following, less than one month from the time of the surrender, and he actually paid the money about the time agreed on. This payment was in consideration of the surrender and of the purchase of an equitable interest in another parcel of land. To my mind, it is in the highest degree improbable that this money would have been promised and paid to the full amount while there was a sum of $65 yet due from the plaintiff to the defendant for the rent of the same premises. The adjustment of that rent, which had become payable only the day before, was a subject so intimately connected with the terms of the surrender and with the extinguishment of the relation of landlord and tenant between the parties, that I think the jury might reasonably find that its satisfaction was parcel of the transaction. The presumption is about as strong as that which obtains where one gives another a promissory note; and there it has frequently been held that the fact furnishes prima facie evidence that a simple contract debt, proved to have been antecedently owing by the payee to the maker, had been discharged. ( Defreest v. Bloomingdale, 5 Denio, 304; Gould v. Chase, 16 John., 226.) The parol evidence in this case added something to the presumption, though of itself it was not strong. The plaintiff, about the time of the transaction, had been heard to say that he had paid the defendant a sum of money to get rid of him. If the surrender and adjustment was made with a view to put an end to the relations which had existed between the parties, it is improbable that anything remained out of which a claim by one of them against the other, in respect to the same subject, could be made. If there was an unpaid half year's rent to be collected, the plaintiff could scarcely be said to be rid of the defendant. Upon the whole, although the papers executed did not establish a flat bar to the claim which the court could act upon as matter of law, they did, with the other facts proved, lay the foundation for a presumption of fact which the jury might consider.
The judgment should be affirmed.
COMSTOCK, J., dissented; JOHNSON and PAIGE, Js., doubted; all the other judges concurring,
Judgment affirmed.