Edwards v. Clemons , 24 Wend. 479 ( 1840 )

*By the Court,

Cowen, J.

The notice accompanying the plea did not mislead by stating that the defendants were bailiffs to Alanson Palmer. They could not take any authority from him; but that was not the objection, nor was it that the notice varied from the truth. It seems to have been merely that the notice was inconsistent in stating a distress by Palmer’s bailiffs for a rent which the same notice stated to be due to his assignees. Such a notice would not mislead the plaintiffs. Particulars enough were stated to show them the premises and rent in respect to which the distress was made. It is enough in a notice of special matter, that it fairly apprise the plaintiff of the material facts on which the defendant means to insist. Chamberlain v. Gorham, 20 Johns. R. 746, on error. Id. 144, S. C.

To the objection that the warrant claimed the rent to be due to Palmer, while the affidavit stated that it was due to the assignees, nearly the same remarks are applicable. The warrant was sufficiently plain on the whole as to the rent for which the distress was to be made. So of the affidavit. This claims a balance of rent for the true year, and is not vitiated by previously averring that the lease was for four years.

No objection appears to have been taken that the warrant was in fact issued in the wrong name, or signed by the wrong person. It undoubtodly went in the wrong name. The rent appears to have been assigned before it accrued, and the warrant should in strictness have been in the name or under the authority of the assignees to whom the rent passed, and have been so expressed. They had more than a mere equitable title. However, the warrant was signed with Palmer’s name, by one of the assignees; and had the form of the signature or the actual authority under which it issued been called in question, they might have sustained the proceeding by more formal documents or other evidence.

Some objections of a more plausible character remain; but I think they are unavailable for the plaintiffs.- The lease was in itself void, as being a parol one for four years. But the plaintiffs actually entered and enjoyed for one year. The entry and enjoyment would alone [ *484 ] have made them liable for use and occupation, and the parol agreement would have shown the amount to be recovered. It has also often been held, that under such circumstances, the lease is in effect but for one year, or from year to year, according to the time of enjoyment. It follows that the parol agreement, though void as a lease,- may yet be resorted to as evidence to make the rent for the year certain, and thus confer a right of distress on the landlord. Schuyler v. Leggett, 2 Cowen, 260. The People v. Rickert, 8 id. 226. The case of Prindle v. Anderson, 19 Wendell, 391, does not at all conflict with those in my reports. On the contrary, Schuyler v. Leggett is expressly recognized. The course of proof by such cases is the obvious one of making out an oral lease for a year by circumstantial testimony.

No doubt there is a variance between the notice and proof in respect to the time of payment, which would have been fatal within the principle of Bristow v. Wright, Doug. 665. The notice relies on rent payable quarterly, while the proof leaves it, in effect, payable at the end of the current year. No stipulation to pay quarterly was shown. The variance, however, as remarked by the learned judge, not operating prejudicially to the plaintiffs, might, as it was, be properly disregarded. It presented a case proper for amendment. See the authorities referred to in Weed v. The Saratoga and Schenectady R. R. Co., 19 Wendell, 541, to 543. The variance supposed to exist between the notice of special matter and the affidavit, the former asserting a lease for one and the latter for four years, might, if necessary, be obviated on the same principle.

New trial denied.