Bogert v. Dean

By the Court.

The only absolute interest which Bogert had in the premises, under the oral agreement between him and Delaplaine, was a right-to the possession until the first of May following; the paroi understanding between him and Delaplaine operating as a valid agreement for the occupation of the premises.from the time of the commencement of Bogert’s possession until the first of May thereafter, (3 Rev. Stat. 34, § 1, 5 ed.,) and this interest, Bogert could surrender or transfer by a paroi agreement, (3 Rev. Stat. 220, § 6,5 ed.,) but whatever may have been his interest, he surrendered and assigned it in writing, in that respect complying with all that the statute required (3 Rev. Stat. 220, § 6, 5 ed.)

The agreement to sell between Delaplaine and Dean was subject to the right of Bogert as lessee. In consonance with that agreement, which was in writing, Bogert, upon Dean’s promise to pay him three hundred and fifty dollars, if he" would surrender the premises on the first of October then ensuing, signed an agreement in uniting, by which he bound himself to do so, which writing, Delaplaine, with the assent of Bogert and Dean, agreed to hold for both parties. He held it until the purchase was completed, and on the day when it was completed gave it up to Dean at his request. This was a valid agree*261ment, founded upon a sufficient consideration, which Dean, after it was delivered to him, could enforce, and having been executed at his request and delivered to him, Bogert, in the want of performance on his part, was equally entitled to the benefit of it.

To entitle him to recover the three hundred and fifty dollars Bogert was bound to show that he was ready and willing to surrender up the premises on the first of October, unless a strict compliance with the condition on that day had been waived by the defendant, and if such were the fact, it rested with Bogert to show it. Benedict v. Lynch, 1 Johns. C. R. 374; Marshall v. 9 Ad. and Ellis, N.S. 791.

Bogert had not removed from the premises on the first of October. He moved a part of his effects on the twenty-ninth of September, and the family appear to have moved out of the house before the first of October. On the first of October there was a violent storm, and it would seem, in consequence of that, and because he did not get into the house he was going to, that he did not remove the bulk of his effects until the second. On the second, according to his' testimony, the family up stairs moved and he also, though he kept a desk and two chairs there after, waiting for Dean to take possession. Dean’s agent went to the house on the first, but it would seem, not for the purpose of taking actual possession, as he was sent by Dean merely to take the height of the ceiling, and testified that he had not been instructed by Dean to get possession of the key. Ho further step was taken by Dean, and on the sixth, Bogert called upon him and he told Bogert that he did not want the houáe until May, and that he could keep it, and upon Bogert asking him for the three hundred and fifty dollars, he replied evasively, “ My memory is very treacherous. I don’t recollect.” On the thirteenth, Bogert went and tendered the keys, but as Dean did not take them he brought them away, and on the fifteenth he sent them to Dean with a note advising him of the surrender of the premises. There was some conflict as to the time of Bogert’s removal, Dean’s agent having testified that he saw Bogert removing out furniture on the 4th.

On the testimony the justice gave judgment for the plaintiff *262for the three hundred and fifty dollars.. We must assume it to have been on the ground that Bogert’s continuance on the premises after the 17th of October was with Dean’s assent and acquiescence. The evidence, I think,.shows that Dean had no intention or wish to take possession on the 1st of October. That for some reason not disclosed, he was not ready to do so until the 1st of May, and that consequently he wished to avoid the payment of the three hundred and fifty dollars, and if he could, to hold Bogert as his tenant until the expiration of that period. He was examined asawitness, and denied what was expressly sworn to by Delaplaitie, that he had agreed to pay Bogert the three hundred and fifty dollars, or anything for quitting the premises. Delaplaine swore that he told Dean that though the agreement to give Bogert a lease for five years was not in writing, that his word had been given for it, that Bogert’s interest must therefore be protected, and that they, Bogert and Dean, must make their own arrangement about the lease, and Dean did not deny that ho had requested and received the written agreement which bound Bogert. Bogert in fulfilment of his engagement had hired other premises. His removal on the first, and that of the family up stairs, appears to have been interrupted by the violent storm on that day, and he removed from the premises substantially, according to his statement, on the day following. The purpose for which the defendant’s agent called was an indication that Dean did not want actual possession on that day, that he was not yet ready to use or take possession of the house, upon which Bogert may very well have lingered tintil the 6th, when he called'upon Dean, and the interview took place which has been referred to. The evidence to show a waiver on the part of Dean is slight, and perhaps doubtful, but the justice deemed it sufficient, and I think we ought not to disturb the judgment.