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18 Vt. 87

Hard v. Brown

Supreme Court of Vermont

Decided January 15, 1846

Supreme Court of Vermont · decided 1846-01-15

<p>The supreme court will not notice a question of variance between the declaration and proof, unless it appears by the bill of exceptions that the question was raised in the court below.</p> <p>Where a written agreement for the use of premises contained a clause, that the lessor should allow the lessee to use such furniture as he could spare, by paying eight per cent, per annum on its estimated value, and also contained a distinct clause, that the rent should be paid in two equal semi-annual installments, and that the lessee should furnish sufficient security for the same, it was held that the agreement should not be construed as requiring security to be given for the use of the furniture, — especially as it was apparent, from the conduct of the parties at the time, that they did not so understand it.</p> <p>And the agreement being, that the lessee should give sufficient security for the rent, it was held that it made no difference, if the security offered was adequate, whether it was personal security, or security upon real estate, and that, if real estate were offered, the fact that it was incumbered by a pri- or mortgage was no legal objection to its sufficiency, but was a fact to be submitted to the jury.</p> <p>And where the security offered, in such case, was on real estate, and the lessor absolutely refused to receive it, claiming that he was entitled to personal security, it was held, that the lessee was not bound to tender a mort- • gage deed to secure the rent, nor to give to the lessor particular informaation as to the situation and value of the real estate offered.</p> <p>In such case the party has the whole of the day, on which the lease is to commence, for making his security, and though he may have said, upon the refusal of the lessor to receive certain security offered, that he would have nothing farther to do with the matter, yet this might be countermanded at any time during the day, if not acted upon by the lessor, and an offer during the day, of adequate security would be sufficient.</p> <p>When the question in issue is in regard to the pecuniary responsibility of a person, witnesses may be allowed to express their opinion as to his solvency, as derived from a personal acquaintance with him and from his reputation, in this respect, in the community where he resides.</p> <p>So testimony is admissible, upon this question, as to the habits of the individual for industry, sobriety, &c.</p> <p>It is not an objection to the admissibility of a deposition in evidence, that the word “appeared ” is omitted after the word “personally,” in the certificate of the oath, when in other respects the certificate and caption are in the statute form.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1846-01-15

How this case has been cited

Cited by 13 later decisions — most recently February 1968

13 state decisions

401846185018601870188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The opinion of the court was delivered by

Bennett, J.

¶2The defendant must be confined to the ground of variance, which it appears by the bill of exceptions was insisted upon in the court below. We do not think that there was, in this particular, a variance between the declaration and the proof. Though we might, perhaps, be of the opinion, that the term rent might be extended, so as to include what might become due for the use of furniture, if the intention of the parties required it, yet we think that the parties did not contemplate, that security should be given for the use of any furniture, which Hard might, in the end, *97have with the place. Brown was under no legal obligation to let him have any. If he had any furniture, which he chose to spare, it was to have been appraised, before the amount to be paid for its use could be ascertained. It is quite apparent, from the conduct of the parties, that they did not understand, that the use of furniture was included in the term rent. Hard went to take possession of the premises, without having any furniture appraised, and Brown made no claim, that the security was to include the use of furniture.

¶3The terms of the contract required, that Hard should give sufficient security; and if it was adequate, it made no difference, whether it was personal or real security. Either might be sufficient. The fact, that the real estate had a previous mortgage upon it, was no legal objection to its sufficiency. It might, notwithstanding, be abundantly adequate. The jury were fully, and, as we think, correctly instructed on this point.

¶4The defendant was not bound to have made out and tendered to the plaintiff a mortgage deed to secure the rent. The law never requires a useless ceremony to be performed ; and when Brown refused to take a mortgage, insisting that he had a right to require personal security, the defendant was excused from tendering a deed. Neither was he bound to have given any more explicit information in relation to the property, especially in a case in which none was required. ,

¶5We do not see, that the county court erred in permitting witnesses, who had a personal acquaintance with Rood, to express their opinion in regard to his solvency, as derived from a personal acquaintance with him, and from information derived from others in the vicinity where he resided, and who were also acquainted with him. When the question in issue is in regard to the pecuniary standing of an individual, the matter must necessarily rest, to some extent, in opinion. This opinion must be based upon what the witness knows of the individual himself, and upon the estimate of others, who know him. The credit of an individual is ordinarily, in fact, in a great degree, made up of opinion.

¶6The evidence relative to Rood’s habits for industry and sobriety was properly admitted. It had an evident bearing upon the character of the security offered, in relation to its sufficiency. Common *98prudence will always induce an individual, who is about to give credit to another, to inquire respecting his habits.

¶7Upon this bill of exceptions it is quite immaterial, whether the lease commenced on the first or the second day of March. If it commenced on either day, Hard had the whole of the first day, in which he could give to Brown the security. The contract does not provide, that the security for the rent should be given only on the day, upon which the lease took effect. Besides, since Brown distinctly based his refusal to receive the security upon other grounds, it may well be questioned, whether he can now be permitted to take the position, that the plaintiff was premature in offering the security.

¶8Some other points of minor importance were made in the argument of the case ; but the court are entirely satisfied with the ruling of the court below and affirm their judgment.

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