Williams v. Sherman — 7 Wend. 109

Majority

p. 109

Williams vs. Sherman.

Headnote

In an action for use and occupation, the plaintiff may avail himself of an agreement, not under seal, whereby a rent certain is fixed, to regulate the amount of recovery; and although the plaintiff has not declared tipon the agreement, and claims generally to recover for use and occupation, the defendant is not at liberty to give evidence of the value of the premises occupied, to reduce the recovery below the sum stipulated.

A party sued as the part owner of a steam boat, cannot prove that the boat belongs to an incorporated company, without producing the act of incorporation.

Interest is recoverable on contracts for the payment of money from the time when the principal ought to have been paid.

This was an action of assumpsit, tried at the Washington circuit, in November, 1829, before the Hon. Esek Cowen, one of the circuit judges.

The declaration was for use and occupation of a wharf at Whitehall, as a landing place for a steam boat, of which the defendant was master and part owner. The plaintiff offered to prove an agreement on the part of the defendant to pay $40 per month for the use of the wharf, which was objected to, because not declared on; the objection was overruled, and the testimony offered was received. The defendant attempted to prove that the same privileges as to the use of the wharf in the piling of wood, had not been allowed to him, which had been granted to the owners of other steam boats, using the same wharf. Upon this point evidence was given by both parties. The plaintiff having rested, the defendant insisted that the plaintiff was not entitled to recover, because from the evidence it appeared that he, the defendant, was merely an agent for others; and if he could be considered as part owner, that the other owners should have been joined with him as defendants. These objections were overruled, the judge

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deciding as to the first, that it was question of fact which he jje sh0uld submit to the jury; and as to the last, that the defendant could not avail himself of it in this stage of the suit. The defendant then offered to prove that the wharf was partly built in Lake Champlain, for the purpose of insisting that the lake being a public highway, the plaintiff was not entitled to charge for the use of the wharf. This evidence was rejected. He also offered to prove that the use of the wharf was not worth $40 per month ; that in the following year the plaintiff let the whole wharf for $500. This evidence also was rejected. He also offered to prove by parol, that the steam boat in question belonged to an incorporated company, which testimony was rejected, the judge ruling that the act of incorporation was the only proper evidence. Under the charge of the court, the jury found a verdict for the plaintiff] for $330,-47, subject to the opinion of this court, whether the plaintiff was entitled to interest. Should they be of opinion that he was not entitled to interest, the verdict to be reduced to $306,66.

S. Stevens, for plaintiff.

J. Edwards, for defendant.

The plaintiff declared generally for use and occupation, and the judge admitted evidence of an agreement, which the defendant contends was of such a character as to be special, and to require a special count in the declaration, to entitle the plaintiff to recover. It is not necessary to say whether the agreement was special or not; for it had been fully executed, and the plaintiff did not sue for the violation of the terms of it, but for the sum stipulated by it to be paid. It is said by the supreme court of the United States, in the case, of The Bank of Columbia v. Patterson’s Executors, 7 Cranch, 303 , that it is incontrovertiblv settled that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not under seal, which has been completely executed. The same doctrine is found in many decisions of this court particularly in the case, very familiar to the profession, of Jew

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ell v. Schroeppel, 4 Cowen, 566. The defendant’s objection is answered in a manner equally satisfactory, by applying to it the provision of the statute relative to the action for use and occupation. If, on the trial of such an action, any agreement shall appear in evidence not being by deed, whereon certain rent was reserved, the plaintiff shall not be nonsuited, but may use the same as evidence of the quantum of damages to be recovered. 1 R. L. 444.

It was left to the jury to say whether the defendant was a part owner, or the mere agent of the boat, and they must have found, as the evidence warranted them to do, that he was a principal.

It was objected at the trial that the other owners were not joined in the action. If it clearly appeared there were other owners, and it is perhaps fair to infer there were other owners, that fact did not constitute a ground of objection at the trial.

It was an objection of which the defendant should have availed himself, by a plea in abatement.

The defendant offered to prove what was the fair and reasonable value of the wharf, but the judge refused to hear the evidence. If an agreement was established whereby the defendant became obliged to pay forty dollars a month for the use of the wharf, the court would have been uselessly employed in listening to the testimony offered, for the stipulated price must, according to the statute referred to, regulate the amount of the recovery. There was abundant evidence that-the rent was specified; the parties had settled what the defendant wished to leave to the jury, viz. the value of the landing place. The position taken by the defendant, that he had not the full benefit of what was contracted for, and therefore had a right to reduce the amount stipulated to be given, the facts do not authorise him to assume. The case shows that the plaintiff fulfilled his part of the agreement, by giving to the defendant the possession of the premises he contracted for.

Another ground of objection urged is, that the defendant was denied the right to prove that the'boat belonging to an incorporated company. As a necessary part of the proof of that fact, the court required the act of incorporation to be shown, T his was proper. If for any purpose it was necessary to show

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the existence of the company as a corporation, the act that ma(je them such, as it was not admitted by the pleadings, should have been produced.

The demand claimed by the plaintiff Was liquidated; the sum was specified, and the period of occupation was not a matter of doubt. “ All contracts to pay,” says Lord Thurlow, 2 Bro. Ch. C. 3, “ undoubtedly give a right to interest from the time when the principal ought to be paid.” We think that the plaintiff is entitled to interest, and consequently should have judgment on the verdict for $330,47,