Brown v. Hart ( 1917 )

One of the claims relied upon by the defendant is, that after Erle Morgan became twenty-five years of age the trustee no longer had a right to bring summary process, because the trust had terminated or become purely passive, and the trustee was no longer the owner or lessor of the premises. The trustee had not conveyed the premises to the cestui que trust, and so long as the defendant remained in possession, refusing to quit because claiming to be in possession under a contract of lease from the cestui que trust, which the latter denied having made, it was the right, if not the duty, of the trustee to attempt to free the premises from the incumbrance thus created, before conveying them to the cestui que trust. There was no error in overruling the plea in abatement and in holding that the trustee had a right to maintain the action.

Defendant also claimed and testified that in January, 1915, he made an express contract with Erle Morgan in the nature of a lease of the premises on the same terms as those on which he had been occupying them. Morgan denied this, and his testimony that he instructed the trustee to bring this action of summary process, and that he wanted the property transferred to him unencumbered, was admissible on this issue.

The claim that the trial justice erred in refusing to charge as requested, was properly overruled. The first and third requests to charge, based on the claim that Hart, trustee, had no right to maintain the action, have already been covered. The second request, to the effect that upon the arrival of Erle Morgan at the age of twenty-five years there was created an implied contract between him and the defendant in the nature of a lease, is also unsound in law. The cestui que trust could not be required to take the premises subject to a lease, without an express agreement on his part. The fourth request, as to the burden of proof, was substantially complied with, and the fifth and last was in effect a request for a directed verdict.

The exception to the charge of the justice was properly overruled. The writ of error does not assign any specific errors in the charge, as required by law. It merely contains a general claim that the justice erred and mistook the law "(9) in charging the jury as fully set forth in Schedule Q of the bill of exceptions," and Schedule Q contains the whole charge without pointing out any part of it as erroneous. Aside from this, we think there was no substantial error committed in charging the jury.

The particular error, pointed out for the first time in the appeal from the judgment of the Court of Common Pleas, is that the justice erred in charging the jury as follows: "Gentlemen of the Jury: You have heard the arguments and the evidence, pro and con. If you decide that the plaintiff has proved the allegations of his complaint, you should decide in his favor." It is now urged that the jury were instructed thereby to ignore the affirmative defenses set up in the answer.

On the whole charge, the jury were invited to consider the evidence and the arguments, and to find whether the plaintiff had proved his complaint, or the defendant was right in his "requests" to charge. If the reference had been to the defendant's "answer," instead of to the defendant's requests to charge, no complaint could be made; and the only point in which the requests to charge fail to cover the defenses set up in the answer, is in respect of the alleged express agreement in the nature of a lease, between the cestui que trust and the defendant. As to the existence of such an agreement there was a sharp conflict of testimony between Erle Morgan and the defendant, and it is unreasonable to suppose that the jury understood that they were to ignore that branch of the defendant's case, for they had been told to consider the evidence, and in their verdict they said they had carefully considered it.

In referring to this alleged express agreement as the only point in which the requests to charge failed to cover the defenses set up in the answer, we do not overlook the allegation that the defendant has been at all times ready and willing to pay rent due the estate, and that the trustee has refused to receive it. In view of the other allegations of the answer, the offer to pay rent to the trustee must be understood as an offer to pay rent to him up to September, 1914, when Erle Morgan became twenty-five years old. After that date the answer alleges a contract to pay the rent due and to become due to Erle Morgan. In other words, the whole defense set up in the answer hangs on the theory that as soon as the cestui que trust reached that age he became capable of contracting as lessor of the premises, and that the defendant was entitled to remain in possession of the premises by virtue of an express or implied contract to that effect with the cestui que trust.

Another objection is to the form of the verdict, which was as follows: "After careful consideration of the evidence in the case, we find judgment in favor of the plaintiff." We think this amounts to a general verdict for the plaintiff on the only controlling issue of fact in the case, namely, whether the defendant was in possession under an express contract with the beneficial owner. Although original in form, the verdict is intelligible, and no particular form of verdict is required by our law, except in the case of special verdicts provided for in § 757 of the General Statutes.

The claim that the justice erred in allowing counsel to read from, and in permitting to go to the jury-room, a document not marked as an exhibit in the cause, is without substance, for the bill of exceptions shows that the document was offered and admitted in evidence, and that the failure to mark it as an exhibit was through inadvertence.

The exceptions relating to the justice presiding over the second trial of the case after the first trial had resulted in a disagreement, and to the admission of the deposition of Hart, trustee, were abandoned at the argument.

This disposes of all the assignments of error pursued on the brief.

There is no error.

In this opinion the other judges concurred.