Curtis v. Treat , 21 Me. 525 ( 1842 )

The opinion of the Court, Sheplet J. not sitting in the case, having been employed at the time of the argument in holding the jury term in the County of Piscataquis, was drawn up by

Whitman C. J.

— The object of this suit appears to be to recover for the use of a sawmill, during the year 1838. The defendant appears to have occupied it, by an under tenant, for that year, supposing it, as he, at sometimes pretended, to belong to one Bolles. The occupation, therefore, was without the consent previously obtained, and in fact without the knowledge of the plaintiff. The state of landlord and tenant, in such case would not exist between the parties. The plaintiff might have brought trespass for the mesne profits against the defendant; but an action for use and occupation, under such circumstances, could not have been sustained.

There would however, seem,- subsequently, to have been, on the part of the defendant, according to the testimony of a witness introduced by him, a recognition of the plaintiff’s right, and that the rent belonged to him. If this should be deemed tantamount to an original implied occupation, as lessee to the plaintiff, this action for use and occupation may be sustained* It was competent to the parties to agree to Waive the tort, and to change the liability of the defendant into an assumpsit. "What took place between the parties, as represented by the above witness, seems to us to have been to that effect. Ball v. Gibbs, 8 Ter. R. 327. In such case it is for the defendant to show payment, or accord and satisfaction, if he would exonerate himself from liability in this action; neither of which has he done.

The Judge, Who tried the cause, in his instruction to the jury, to which the plaintiff excepted, seemed to consider what took place in the presence of the above witness, as a recognition of the defendant as an agent in letting the mill; but to us it seems that such a construction of what then passed, did not amount to any thing of the kind. It has rather the semblance of a loose conversation between the parties, about the use which had been made of the mill; the plaintiff expressing his satisfaction at the prospect of deriving income from it, and the defendant freely conceding, that he was entitled to it, and stating what payment he had received on account of it, and was willing to surrender.

The idea of an agency for the plaintiff is forcibly refuted by the defence, which the defendant, at first, attempted to maintain. The defendant could not be owner himself, and, at the same time, agent for the plaintiff. This would be utterly absurd. After setting up such a claim, and finding himself unable to sustain it, the pretence, afterwards set up, that he was the implied agent of the plaintiff in letting the mill, must have come with a very ill grace from him.

But suppose the plaintiff had instituted an action of account against the defendant, declaring against him as his agent and receiver, how could his agency have been made out? and what would have been the effect of the proof here adduced ? Could it have been deemed sufficient to establish any such fact ? The defendant had conceded nothing of the kind; but alleged that he had acted as agent for Bolles. The presumption, however, notwithstanding what may have been pretended, would seem more naturally to be, that he in fact acted for himself, and not as agent to any one else; since it appears, that he had possessed himself of a title under a sale for taxes, which he attempted to establish in his defence. We think, therefore, that his defence fails him upon the latter, as well as upon the former ground.

Exceptions sustained and a new trial granted.