Wheeler v. Hill , 16 Me. 329 ( 1839 )

The opinion of the Court was drawn up by

Emery J.

We consider that the proposed declarations o 1 Burr were rightly rejected. They could have been shown only by the counsel retained in his defence. And the law does not regard it as necessary for the protection of the client, that his communications should be made to his attorney under any particular circumstances or injunctions of secresy. It is sufficient that the relation of client and attorney subsisted between them to throw around the proceeding an impenetrable veil of secresy, excepting only if it should become necessary, it might he communicated, that Burr employed him. Not a syllable more which he said on his case can lawfully be divulged. There would exist another objection against the admission of tho evidence, that it would be hearsay. It would be entirely useless to introduce the process of forcible entry and detainer, the justice of which was denied by pleading the general issue. No judgment had been rendered ihereon. Many groundless prosecutions are commenced. Whether this was of that description we cannot undertake to say. Only we are satisfied it ought not to have been admitted in this trial.

All the evidence in relation to the inquiry whether the building had been used for purposes usually denominated extra hazardous as to fire by insurance companies, was fully submitted to the jury, and they could find no such use. We do not perceive that they have drawn an incorrect conclusion. They have also negatived the fact that Hill or Smith entered for the breach of the covenants for non-payment of rent.

The defendant having offered the proceedings in the suit, Hasty & Huntress against said Wheeler upon the lease between them, must not be permitted to avail himself of objections against their admissibility. If any truly existed, he must be deemed to have waived them all. It would be absolutely indecorous to allow a party to practice upon such a principle in a court of justice. He must be bound by his own election to introduce the evidence.

This action is founded on the covenants of a lease by indenture, made between the defendant and the plaintiff on the 10th of Sept. 1830, by which the defendant demised to the plaintiff, his heirs and assigns, a building, lot of land, and wharf, in Bangor, to hold for five years from the 1st of Nov. then next. And Wheeler covenanted for himself, his heirs, executors and administrators to pay rent, &c. And in like language the said parties covenanted to each other. The word “ assigns,” is not again used. If Hill sold the premises during the term, the lease was to expire after two years from the date, “ but in such case said Hill shall pay said Wheeler for all betterments, which he shall have made on the premises.”

Whenever a lessee conveys to a third person the whole or any part of the land for a portion only of his term, such third person is not an assignee of the term, but an under tenant. Even when there have been covenants not to assign, transfer, set over, or otherwise do or put away the lease or premises, courts have always held a strict hand over these conditions for defeating leases. The lessor, if he pleased, might certainly have provided against the change of occupancy, as well as against assignment. Crusoe ex dem Blencowc v. Bugbee, 2 Black. R. 766; 3 Wills. 234. But be did not, and the parties by the lease having contemplated an assignable interest, we must regard the expenditures of the under tenant as though they had been made by Wheeler himself.

We are satisfied that the instruction to the jury was correct. And they having found that the expenditures by Wheeler, Hasty & Huntress were such as men of prudence and good judgment would have made on the premises, in contemplation of the use of the property as authorized by the lease, and that they did in fact add such an amount to the value of the building, supposing it should remain there, it would be quite inequitable, as well as unlawful, to allow the defendant to escape from responsibility to that extent. He has taken his indemnity in his contract with Mr. Smith of the 22d of December, 1832.

We consider that the sums of $101,60, and of $478, should constitute the principal. But on the authority of Holliday v. Marshall, 7 Johns. R. 211, we must deny interest, because the matter was all open at the trial to settle as unliquidated damages. Interest should not be calculated from the 26th day of May, 1833, to the time when the verdict was rendered. The verdict must therefore bo amended, assuming $464 as a principal, and judgment must be on the verdict amended, with the addition of interest, as by law it should be.