Plummer v. Currier , 52 N.H. 287 ( 1872 )

Ladd, J.

According to the testimony of the plaintiff, he went into occupation of the farm without any definite arrangement or contract as to the terms upon which it was to be held. If so, while he thus occupied the premises, he was a tenant at will of the defendants. Gen. Stats., ch. 231, sec. 5. According to the testimony of the defendants, he was let in on a negotiation for a sale, and no other contract was ever made. This comes to the same thing. He would still be a tenant at will—Doe v. Chamberlaine, 5 M. & W. 14; Doe v. Miller, 5 C. & P. 595; Howard v. Shaw, 8 M. & W. 118; Gould v. Thompson, 4 Met. 224; 1 Washb. R. P. (3d ed.) 511, note 2; Woodbury v. Woodbury, 47 N. H. 11, and cases cited — and in this State would be liable for the use and occupation, either in trespass or assumpsit. Woodbury v. Woodbury, supra. The crops raised upon the land during the continuance of such tenancy would be the property of the tenant. Rising v. Stannard, 17 Mass. 287; Ellis v. Paige, 1 Pick. 49; 3 Washb. R. P. 509. Littleton, speaking of tenancies at will, says (ch. 8, sec. 68), — “If the lessee soweth the land, and the lessor, after it is sown and before the corne is ripe, put him out, yet the lessee shall have the corne, and shall have free entree, egresse, and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him.” And see Co. Litt. 55, a; 2 Bl. Com. 146. In this case, it seems that an action of assumpsit had been brought by the defendants in Grafton county, against the plaintiff, for the use and occupation of the premises, which could rest upon no other ground than that the plaintiff had had a beneficial enjoyment of them.

In this view, I am unable to see the importance of the special finding of the jury, that the plaintiff held under an agreement to pay rent; and it was only on this question that the evidence objected to was admitted. We should not set aside a verdict because incompetent evidence was received upon an immaterial issue, unless it appeared that the party objecting was prejudiced thereby : but we think the evidence was not incompetent. The rule is strictly held in this State that an offer to compromise is not to be shown, on account of the tendency such a practice would have to discourage the settlement of disputes. But it is at the same time held with equal clearness, that any independent admission, though made in the course of negotiations for a compromise, may be shown. Sanborn v. Neilson, 4 N. H. 501; Bartlett v. Hoyt, 33 N. H. 151; Perkins v. Concord R. R., 44 N. H. 223; Eastman v. Amoskeag Co., 44 N. H. 143;—and see Mussey v. Holt, 24 N. H. 248.

If the offer here had been to refer the question whether the plaintiff held under an agreement to pay rent, it would clearly have been inadmissible. But the offer, as testified to by the plaintiff, was to refer the amount he should pay. Suppose the defendants had said in words, “ You are holding under an agreement to pay me rent; we differ as to the amount you shall pay; 1 will leave that out to men :” could it be contended that here was not an independent admission, which might be shown against him on a subsequent trial of the question whether the holding was under such agreement or not, although it was coupled with án offer to refer the other matter ? We think not. The admission, as to the mode of holding implied by an offer to refer the question of the amount to be paid, is little less explicit and conclusive, though no such language was used. The oiler presupposes and is based upon a fact as to the mode of holding, which the defendant denied and the plaintiff affirmed at the trial. We think it comes fairly within the cases above cited, and is not obnoxious to the objections which existed in Gault v. Brown, referred to in the defendants’ brief, — and that the verdict could not for this reason be set aside, even were the question upon which the evidence was admitted material.

A majority of the court are of opinion that the question whether unthreslied wheat and oats were to be regarded as provisions, under the circumstances shown, was properly left to the jury. My first impression was different, and I still find myself unable to concur in this view. There is nothing technical, scientific, or unusual in the term provisions, as used in the statute, calling for interpretation by the jury ; and if the fact that both wheat and oats are used as food for man were in dispute, still, that question was not submitted to the jury. It seems to me the question whether or not any given thing is provisions, within the meaning of the statute, must depend on the nature of the thing itself, and the uses to which it is or may be put. If wheat and oats unthreslied are provisions, nothing else being left, the officer must leave of them the amount exempt from attachment as provisions. If they are not provisions, it makes no difference whether anything else were left or not: he might take the whole. But I think the jury were right in their interpretation. The fact that the grain had not been separated from the straw by threshing, to my mind makes no difference. If the grain could be taken on a writ before it was threshed, why not after it was threshed and before it was carried to the mill to be ground ? and if before the grinding, then why not after the grinding and before the cooking ? — for all these processes are equally necessary before it is fully prepared for food. The result, therefore, so far as this case is concerned, is the same, whether one view or the other be correct: the only difference is, that I should say the ruling was too favorable to the defendants, inasmuch as it sent a question to the jury which ought to have been determined against them by the court.

A difficulty is suggested as to the straw. The jury appraised the wheat and straw together at $10, and the oats and straw together at $5; and it is said that, the straw was not exempt from attachment, and, there being no separate valuation, the court cannot say how much of the verdict shall stand for the wheat and oats apart from the straw. Before threshing, it was impossible for the officer to take the straw without at the same time taking the grain, which he'had no right to take. The plaintiff was under no obligation to thresh it, and the officer did not do so. The whole was taken together and sold on the writ in entire disregard of the plaintiff’s rights; and the contention now is, that the officer accomplished what there is no pretence he intended, and what, from the situation of the property, was a physical impossibility, namely, that he effected a valid attachment of the straw, although his first act in seizing it was a trespass by reason of the plaintiff’s right in the grain. We cannot accept this view : we think the taking of the unthrcsliecl wheat and oats must be regarded as an abuse of an authority in law, somewhat analogous to the seizure of an article from the person of the defendant, which cannot be taken without first committing a trespass. See Kingsbury v. Pond, 3 N. H. 511.

As to the hay, the jury seem to have misunderstood or entirely forgotten the instructions of the court; — at any rate, they totally disregarded them. There was no exception to the instruction on this point, and we have not considered whether it was right or not. It is admitted that the verdict was wrong as to all but a ton and a half of hay, which the statute exempts from attachment; and if the instruction was right, the verdict was wrong as to that also. All the hay has been sold on the defendants’ writ in Grafton county, and must be accounted for in that -suit, and we think that item must be wholly stricken out.

The jury have found specially the separate value of each item, for which, in our-opinion, the plaintiff is entitled to recover; and we think he is entitled to judgment on the verdict for the amount of those items. It is of no consequence, so far as we can see, that they undertook to deduct $60 for the use of the premises, which they had no right or power to do. That operation was entirely distinct from their appraisal of the articles for which the plaintiff is entitled to recover, and it is impossible to see how the appraisal could have been affected by.it. The error lies upon the very surface of their special findings. It is true, they passed upon one matter not involved in the case ; but all the facts necessary to a perfect verdict were specially found, and the court can plainly see for what sum judgment should be rendered. Tucker v. Cochran, 47 N. H. 54; Janvrin v. Fogg, 49 N. H. 340; Lisbon v. Lyman, 49 N. H. 553.

Judgment on the verdict for $62.