Norris v. Morrill , 40 N.H. 395 ( 1860 )

Dob, J.

The evidence tending to prove that the parol agreement was for a letting of the stable for one year, but without any express agreement as to the time when the rent should be paid, was admitted specially and solely as bearing upon the question when the rent was to be paid, but not with a view to prove a lease for a year. The jury were allowed to find, from an express agreement as to the length of the term, an implied agreement as to the time of payment. It is no objection to evidence that it proves an inoperative agreement, when it is oifered or admitted not to prove that agreement, but to prove something else, and the first exception is overruled.

No particular words are necessary to constitute a demand of rent. A demand may be made without words written or spoken. It is enough if both parties understand that a demand is made. No words and no acts can make a demand when there is no intention to make it. The intention may be manifested and conveyed by words or acts, but they are evidence of a demand only so far as they tend to show an intention or understanding. A landlord might repeat the words of an express demand in the presence of his tenant for other purposes than to demand money of him. A demand might be made upon a deaf tenant by signs understood by both parties, and the landlord would be allowed to show what they understood by the signs, and would not be restricted to evidence of what was said and done.

The understanding being material, not merely as evidence, but as the thing to be proved, may be shown by competent testimony. And when the intention of a person performing an act, is to be proved, and that person is a competent witness, there can be no reason why he should not testify directly to his intention as well as to his doing the act. To exclude such testimony would be to prohibit positive evidence as to one class of facts, and to allow the jury to find them only upon circumstantial evidence. The intention of Emerson in presenting rent bills to the plaintiff, was a material fact in this case. It was a disputed question whether payment of the bills was demanded. If Emerson, without saying any thing, had intended that the plaintiff should understand from the presentment of the bills that payment was demanded, and if the plaintiff did so understand, then there was a demand. He might have presented them for information as to their amount, or as an exhibition of hand-writing, or in sport, or to annoy and insult the plaintiff, without any purpose of demanding payment, and without any understanding on the part of the plaintiff that payment was demanded ; and if there was no such purpose and no such understanding, there was no demand. Emerson’s intention was best known to himself; was with him a matter not of opinion, inference or hearsay, but of consciousness, certainly, absolutely and peculiarly within his own knowledge. The court ruled that the defendants might show what Emerson said and did, but that the inquiry as to his purpose and intent was not competent, and the exception to this ruling must be sustained.

The testimony of Morrill, one of the defendants, as to the purpose of his acts upon the premises, would be admissible upon the same ground as the excluded testimony of Emerson, malice being aground of exemplary damages, and the purpose of Morrill being therefore a material fact.

"Where the damage for which an action is brought has resulted from misrepresentation of a fact by the defendant, and it is material to prove not only that the statement was false in fact, but also that the defendant knew it to be false, he, being a competent witness, may testify to his knowledge or ignorance of the falsity of the statement at the time he made it. In suits where the intention of the defend mt is of the gist of the action, and must be shown to be malicious, not to affect the amount of damages but to entitle the plaintiff to recover any damages whatever, there would seem to be no reason why the defendant, being a competent witness as to all other material facts, should not testify to his intention — the fact which is most materia], and which he alone of all men is presumed certainly to know. And there can be no occasion for a different rule where exemplary damages may be given for malicious mischief and for aggravating circumstances of intended indignity, insult and outrage, and where the purpose and intent of the wrong-doer, apparently manifested in his acts, may be the pi'incipal and even the only ground of such damages.

A demand of rent may be waived, not only expressly, but also by a mutual understanding that it is waived, and a long delay in giving notice to quit, and payment of rent, might be evidence competent for a jury to weigh, to show that there was such an understanding. The instructions given to the jury concerning a renewal of the former relation of landlord and tenant, and recognizing and treating the tenancy as still subsisting, were probably understood by the jury merely as calling their attention to a waiver of demand by a tacit assent to the extension of the tenancy to another term, though they might have misled the jury, and seem not to have been essential to a proper understanding of the case.

Verdict set aside.