Duley v. Kelley

The first question which it became important for the jury to determine was whether the plaintiff acquired, by virtue of his memorandum from Thomas M. Keed, any paramount rights in the premises as against the defendant. If the defendant, previously to any negotiations between the plaintiff and Reed, had received Reed’s verbal permission to pile his wood upom that landing for six cents a cord, in reply to defendant’s verbal inquiry whether and upon what terms he could have the use of the landing for that purpose, and in pursuance of such permission had entered upon the landing and commenced piling his wood there without any objection interposed by Keed, as was .seemingly the case, that contract between Keed and the defendant was complete, and he became Reed’s tenant at will there to that extent, though he had not made and communicated to Keed *560any acceptance, verbal or written, of Reed’s terms. The act of entering upon the premises and commencing- to occupy them, in pursuance of the verbal permission amounted to an acceptance of the terms, and both parties to that negotiation were bound to take notice of it, and conform their action to the rights thus respectively acquired.

Without the defendant’s consent Reed could not terminate the defendant’s rights there except by written notice in accordance with R. S., c. 94, § 2.

Nor by such verbal negotiation and action could the defendant acquire any rights beyond those of a tenant at will, by reason of R. S., c. 73, § 10.

But he would have the rights of such a tenant to the extent of his contract until the tenancy was legally terminated either with his consent or by written notice from Reed. The third, fourth and fifth requests of the plaintiff were therefore rightly refused, and the instructions given upon these points were substantially correct, and at all events afford the plaintiff no just cause of complaint.

Now, touching the plaintiff’s hypothesis, to support which he offered testimony to the effect that defendant, not being satisfied with the terms which he had secured from Reed, requested the plaintiff to negotiate with Reed to obtain the privilege of the landing for the use of plaintiff and defendant, and that he accordingly did arrange with Reed and procure the memorandum, with the defendant’s assent, the jury were instructed that "if the defendant yielded his fight to the plaintiff — permitted the plaintiff to go and hire the' whole,- independent of his right which he had acquired under the permission of Mr. Reed .to enter and occupy, then he 'could not set dp that right as against the plaintiff and again it was said in substance that such consent on the part of defendant would be sufficient as between him and the plaintiff, while without such consent the action could not be maintained. Thus it appears that so far as the defendant has seen fit to report the instructions, the right of the plaintiff to. maintain the action was made to depend upon the consent of the defendant that the plaintiff should go and procure the memoran*561dum from Need. Tho instruction quoted imports that tho memorandum from Need should bo construed as a letting of the whole to tho plaintiff. Tho jury must have so understood it, and they surely could not misunderstand the recital that " it is understood that Drummond Kelley is to occupy one half of said landing by paying said Duloy two dollars and a half, and not occupy more than one-half of the frontage of said landing,” whether any special instruction was given with respect to it or not. But if the plaintiff desired a special instruction touching the effect of a provision so intelligible, he should have prefixed to his first request enough to show that it was to be applied by the jury only in case they found that tho defendant consented to the plaintiff’s taking the memorandum from Reed. The requested instruction as it stands, without this qualification, would certainly convey to the jury the erroneous idea that the rights of the parties in tho landing wore to be governed in any event by the memorandum from Reed. The plaintiff evidently intended that the jury should so understand it, as appears by his third, fourth and fifth requests, which, as we have before said, were rightly refused. The presiding judge is under no obligation to amend a party’s requests for instructions, and unless they are complete and applicable to the ease as they stand, his refusal to give them is no ground for exceptions.

The propriety and applicability of the second request depend upon the same contingency as to the defendant’s consent that tho plaintiff should hire the landing of Reed after he had taken possession and begun to pile his wood there. The plaintiff seems to have persistently ignored, at tho trial’at nisi prius, tho necessity of that consent, but it was indispensable to the rightful introduction of any of his hypotheses, or his acquisition of any rights in the premises as against the defendant. But there is still another valid reason for the refusal of the second request. It seems that the plaintiff testified that " no division of the landing was made between him and the defendant.” This being so, we see no ground upon which the action of trespass could be regarded as the proper remedy for the plaintiff to pursue. True, his astute *562Counsel contends that be testified to certain agreements between himself and the defendant, which the counsel argues amounted to a division, but where the subject matter consists of what men even of a low order of intelligence must needs understand, it would be unreasonable to permit exceptions to be sustained for the refusal of a request based upon a hypothesis the truth of which had been explicitly denied by the party whose counsel prefers the request.

As to such matters the counsel’s complaint should be — not of the presiding judge — but of his own client, who has cut the ground from under, him by testimony which at the best is self-contradictory. The correctness of the jury’s apparent conclusion upon the question of defendant’s consent that plaintiff should tafee the lease from Need is not here and now an open one.

Exceptions overruled.