Livingston against Miller, survivor, &c.

Livingston against Miller, survivor, &c. Where rent is payable in wheat, fowls and services on a day named in each year during the term, “ at the North river within the county of Columbia, or within lot No. three (situated in said county) as the lessor shall from time to time direct,” the lessor can sustain an action on the lease for the value of the rent, without averring or proving that he directed the lessee where to deliver the articles or perform the service. In such a case interest is recoverable on the value of the rent from the time it became payable. Appeal from the judgment of the supreme court sitting in the third district. The action was covenant, commenced in 1847 upon a lease dated in 1822, executed by the plaintiff as lessor, and the defendant Miller and one Finkle, since deceased, as lessees. The declaration averred the making of the lease, whereby the plaintiff demised unto the lessees a certain farm situate in Columbia county, and being part of subdivision lot three in great lot No. two in the manor of Livingston, during two lives, the lessees, “ yielding and paying therefor unto the lessor, his heirs, executors, administrators or assigns, yearly and every year, on every first day of January during the term, at the’ North river within the county of Columbia, or within said lot No. three, as the lessor should from time to time direct, the rent of twenty-five bushels of good clean merchantable wheat of the first quality, four hens and two day’s riding,” and in and by which the lessees “ did covenant, grant and agree to, and with the lessor, his heirs and assigns, that they and the survivor of them should and would well and faithfully pay, fulfil, accomplish and perform the rents and services in the manner therein above reserved.” The declaration averred that although the plaintiff had always from the time of the making of the lease well and truly performed, fulfilled and kept all things in the lease contained on his part to be performed and kept, yet that the defendant as survivor of Finkle had not performed, fulfilled and kept the lease on his part as survivor; that after the death of Finkle, during the said term and on the first day of January, 1847, at Taghkanic, wheat, hens and riding of the value of $2000 of the rent and services aforesaid had become and were due and still are in arrear and unpaid to the plaintiff, contrary to the tenor and effect, true intent and meaning of the covenant of the lessees, to the dp mage of the plaintiff of two thousand dollars. There was no averment in the declaration of any direction by the plaintiff as to the place for the payment of the rent or the performance of the services or of any demand of either. The defendant pleaded non est factum, and with his plea gave notice that he would give in evidence and insist upon the facts of which he gave evidence at the trial as hereinafter mentioned. The cause was tried at the Columbia circuit before Justice Parker and a jury. The plaintiff to sustain the action read in evidence the lease mentioned in the declaration, which contained the reservation of rent and covenant to pay the same therein set forth, and also among other things a proviso, that if the yearly rents and services therein reserved should be in arrear or unpaid or unperformed in part or in all by the space of 20 days next after the times appointed, that then those presents and the estate thereby granted should cease, determine and be and become absolutely void and of no effect; and that thereupon it should and might be lawful to and for the party of the first part, the plaintiff, &e. into the said demised farm, to re-enter and the same to have again, repossess, retain and enjoy as of his and their first and former estate, any thing in those presents to the contrary notwithstanding. The price of wheat, of riding and of hens was admitted; and it was proved that at the admitted prices the money value of the rents and services reserved in the lease, from Jan. 1, 1840, to Jan. 1, 1848, both inclusive, with interest, amounted to $456,33; and then the plaintiff rested. The defendant moved for a nonsuit upon the ground that the plaintiff had not shown that he had given any direction to the defendant where to pay the rent. The nonsuit was refused and the defendant excepted. The defendant then proved and read in evidence, certain receipts for wheat and fowls on account of rent, some of which were signed by plaintiff, and some, dated at Taghkanic, were signed “for Robert S. Livingston, William H. Barringer.” The defendant then called one Elijah Finkle as a witness, who testified, that he was present at a conversation between plaintiff and defendant in 1844 at plaintiff’s house at Redhook. That defendant told plaintiff that he had a team of his own and was willing to do his days’ riding whenever called on. He said he raised fowls of his own and was willing to pay them. That plaintiff said in reply, that whenever he came up to the new forge he would call on him, and if he did not call on him he need not pay him. The witness further testified, that the new forge is in the town of Taghkanic and belonged to plaintiff*- that it is about three miles from the farm occupied by defendant, and is in lot Ho. 3 of the division of great lot Ho 2: that plaintiff’s residence is in Dutchess county, about 20 miles from defendant’s farm; that defendant for the last 20 years had teams on his farm. That in the conversation something was said about appointing a place to pay the rent. That defendant told plaintiff he should appoint a place any where in Columbia county where he should pay the rent, and he would pay it. He appointed no place, and made no reply to it that I can remember. Upon cross-examination he testified that Miller had receipts, or what were called receipts at that time, which were handed to plaintiff and handed back to defendant; that defendant went down to settle the rent; he thinks something was said about Barringer—don’t recollect plaintiff’s telling defendant to go and settle with Barringer. That Barringer lived at new forge and was understood to be plaintiff’s agent. That witness does not know whether this conversation was in regard to this or the Post farm, and does not recollect whether the remarks about Barringer were made before or after defendant asked plaintiff to appoint a place. The plaintiff then deducted froiñ the amount above claimed by him, the value of 24 fowls, which by the receipts appeared to have been paid, and also all the days’ riding and interest thereon which became due subsequent to the conversation in 1844, which deductions together amounted to $14,87, leaving due as he claimed, $441,46. No further evidence was given. The defendant’s counsel requested the judge to charge “ that the defendant having requested the plaintiff to name a place where the defendant should pay the rent and the plaintiff having refused to do so, the plaintiff was not entitled to recover any rent which became due subsequent to such request.” The request was refused, and the defendant excepted. He further requested the judge to charge, that as the defendant had proved that he had in the year 1844 informed the plaintiff that he had a team of his own and was willing to do his days’ riding when called on, and that he raised fowls of his own and was willing to pay them, and that the plaintiff had told him that he would call upon him and that he need not pay if he did not call upon him, that the plaintiff was not entitled to recover pay for any of the riding mentioned in the case, or the fowls until he had made a demand of performance and had directed the defendant where to perform the services and deliver the fowls. This request was also refused, and defendant excepted. The defendants’ counsel also requested the judge to charge that the plaintiff was not entitled to recover interest upon his claim for services or for fowls or on the wheat rents. This also the judge refused to charge, and the defendant excepted. The judge then directed a verdict for the plaintiff for the sum of $441,46, and to this the defendant excepted. The defendant applied for a new trial on a bill of exceptions, which was refused, and judgment rendered upon the verdict; from such judgment he appealed to this court. John Van Buren, for the appellant. H. Hogeboom, for the respondent. [MAJORITY — Johnson, J.] Johnson, J. The defendant’s proposition upon the motion for a nonsuit was that under the provisions of the lease declared on, the plaintiff could not. recover any thing without proving that he had directed the defendant to pay at one of the two places named in the covenant. This is the first and most important question we are called upon to examine in this case. The decision of this court in Livingston v. Miller did not touch the question, although Mason, J. in his opinion discusses it and expresses his own opinion upon it. The court held that the pleadings had made material the issue whether the plaintiff had designated a place for the payment of the rent, and did not pass upon the question in this case. . Van Rensselaer v. Jones, (5 Denio, 449,) also leaves the question undecided. Whittlesey, J. it is true, says that in his view it was necessary for the lessor to point out the place of performance of the days’ service with carriage and horses and make a special demand of performance, before he could maintain his action, but he also thought that the objection taken at the trial was too narrow to raise that point, and so concluded that a new trial should be denied. It is evident, however, from the preceding case of Van Rensselaer v. Gallup (5 Denio, 454,) that neither of his brethren concurred in the view which he had expressed as to the necessity of a demand. In the last named case, the lessor’s executors had succeeded at the trial. Beardsley, Oh. J., while he thought a new trial ought to be granted upon the ground that an error had been committed as to the rule by which the rent had been apportioned on the trial, said that no demand of the days’ service was requisite, and that it should have been performed on the day named in the lease for the payment of the rent, and McKissock, J. concurred with him; Whittlesey, J. differed with his brethren as to the apportionment, hut adhering to the opinion which he had expressed in the other case as to the necessity of a demand, on that ground was also for a new trial. The point has, however, been substantially decided in two earlier cases in the supreme court, Lush v. Druse, (4 Wend. 313,) and Remsen v. Conklin, (18 John. 448.) In the first of these cases, the rent reserved was 18| bushels of wheat, to be delivered annually on the first day of February in each year, at such place in Albany as the lessor, his heirs or assigns should appoint. It was objected that it was incumbent on the plaintiff to show an appointment of a place in the city of Albany for the delivery of the wheat and notice thereof to the defendant. But the court held that it was the duty of the lessee to have called on the lessor to know where he would have the wheat delivered, and to have delivered it accordingly, and that if the lessor could not be found, still the wheat must be delivered in Albany, and intimated that under those circumstances any place in Albany would probably have been sufficient. In the other case the covenant was substantially the same, and the question arose upon demurrer to a plea denying that the plaintiff had appointed a place in the city of Albany for the payment of the rent. The court gave judgment against the plea, holding that in an action of covenant for rent, it was not neceesary that there should be a demand though the rent was in terms payable on demand. They advert also to the settled distinction between an action for the rent and a proceeding by the lessor with a view to the forfeiture of the tenant’s estate, in which there must be a demand of the exact amount of the rent, at the proper time and place, although no such thing is necessary in an action to recover the rent. In these two cases, however, the court took different views as to the place where the rent was to be paid in the absence of an appointment by the lessor; Oh. J. Spencer being' of opinion that in the absence of any appointment the rent was payable or to be tendered upon the land, and Ch. J. Savage in the latter case, thinking that it was payable or to be tendered any where in the city of Albany. That point, however, did not arise in either of the cases, as no tender or attempt to tender was shown in either. It was argued ■ that these cases were distinguishable from the one at bar upon the ground that they fixed a place of payment, Albany, and that the lessor’s election was therefore less necessary than an election in the case at bar. I think there is nothing in this distinction. Albany merely fixes the territorial limits within which the lessor might designate the place of delivery, but within the city his power of designation was uncontrolled. In the case at bar it appears from the lease, that lot No. 3 is in the county of Columbia, and then the rent is deliverable within that county, either at the North river or within lot No. 3. The place for actual delivery is no more uncertain in the one case than in the other. I am inclined to the opinion that if the landlord fails to designate a place for the payment of the rent, the tenant may pay or tender it at either place mentioned for that purpose in the lease, but that question cannot be disposed of in this case, where no tender of any sort was attempted. Entertaining the foregoing views, I am of opinion that there was no error in the refusal to nonsuit the plaintiff. The defendant’s first request was properly refused, because it assumed that it was proved that the defendant had requested the plaintiff to name a place where he should pay the rent, and that the plaintiff had refused to do so. This was upon the evidence at most a question of fact for the jury, the witness who proved the conversation being unable to say whether the conversation related to this farm or to another, and the defendant having on that question the burthen of proof upon him. The second request is liable to the same objection; it assumed a proposition of fact to be proved, as to which at most the defendant had a right to ask to go to the jury. The direction as to interest was right according to Van Rensselaer v. Jewett, (2 Coms. 135.) The observations already made as to the motion for a nonsuit, dispose of all the points which can arise upon the exception to the judge’s direction to the jury to find a verdict for 0441,46, except upon the ground that there was a question of fact for the jury to pass upon as to whether the plaintiff had waived the performance of the services. It does not appear that any such question was made at the trial. The defense seems to have been rested upon points of law. If the defendant desired to go to the jury, he should have called the judge’s attention to it at the trial. Selden, J. The question raised in this case in regard to the allowance of interest upon the rent, must be considered as conclusively settled by the cases of Lush v. Druse, (4 Wend. 313,) Van Rensselaer v. Jones, (2 Barb. S. C. R. 643,) and Van Rensselaer v. Jewett, ( 2 Coms. 135.) It is insisted on the part of the appellant, that there were two questions of fact which ought to have been submitted to the jury, viz: 1. Whether the plaintiff had waived the services reserved by the lease; and 2. Whether the defendant had requested the plaintiff to designate a place for the payment of the rent, and had offered to pay the same upon a place being appointed. With respect to the first of these questions, it will be seen, that it was rendered immaterial, by the deduction from the amount of the plaintiff’s claim, of all that was included for nonperformance of services, subsequent to the supposed waiver. This was giving to the defendant the full benefit of all he could claim from the waiver, if found by the jury. There could therefore be no necessity for submitting this question. In regard to the second question, it is plain that it was wholly immaterial considered by itself, whether the defendant had requested the plaintiff to appoint a place of payment or not, or whether the latter had declined or not; this could only be material in connection with other facts of which there was no proof. Because, if the designation of a place of payment by the landlord, was a condition precedent to the obligation to pay the rent, as claimed by the defendant, then, as no such designation was proved, the plaintiff should have been nonsuited, without regard to the question whether he was called upon to appoint a place or not. If, on the other hand, the judge was right in holding this not to he a condition precedent, then the defendant was not absolved from his obligation to pay, by the omission or refusal of the plaintiff to appoint a place. Evidence of such a refusal might in one view of the case be material, in connection with proof of a tender of the rent at some place not appointed; but in no other respect could it be of any importance; and as no such proof was offered, the judge was right in disregarding the question. It could not have affected the result if expressly found by the jury. The case is reduced therefore to the single question, whether the obligation of the defendant to pay the rent reserved by the lease, was dependent upon the prior designation of a place of payment, by the plaintiff. The, clause in the lease upon which this question arises, is as follows : “ Yielding and paying therefor, unto the said party of the first part, his heirs, executors, administrators or assigns, yearly and every year on every first day of January, during the term hereby demised, at the North river, within the county of Cohtmbia, or within the said lot No. 3, as the party of the first part shall from time to tim,e direct, the rent of twenty-five bushels of good, clean, merchantable winter wheat, of the first quality, four hens and two days’ riding.” This clause is followed by a covenant to “ pay, fulfill, accomplish and perform, the rents and services before reserved.” When and where was the rent upon this lease to be paid? It will be found on looking into this subject that the law is particularly careful not to permit any omission or uncertainty in regard to the mere place of payment, to interpose any obstacle in the way of the due performance of the contract. It favors the punctual and prompt discharge of all obligations, and hence adopts such rules as will facilitate that object. In all cases, therefore, where the parties have failed expressly to stipulate as to the place of payment, the law either definitely fixes the place, or affords the means by which the obligor, by a proper observance of its rules, may ascertain and fix it. So universally true is this, that it may be safely assumed, that there are few cases if any, in which an obligation to pay, either in money, in goods or in services, is by its terms to be met upon a particular day, where the obligor may not, if he act with a due regard to the rules of law, discharge himself of the obligation on that day. It would be a great hardship were it otherwise, and were the debtor compelled to rest under the obligation, although ready and willing to pay. In this case the obligation assumed is, to pay the rent upon “ every first day of January during the term,” and the landlord has a right to designate the place of payment. But suppose he omits to do this, on or prior to the day fixed, what then is to follow? The consequences of holding that the designation of- the place is a condition precedent, and that the rent cannot be paid until that is done, must, I think be, that unless the lessor appoints the place on or before the day, the rent is forever gone. Because otherwise, it would be in the power of the landlord to change the contract. By the agreement of the parties the rent is payable on a certain day; but if the lessor may omit to appoint the place of payment in time for that day, and afterwards designate it, he may make the rent payable whenever he chooses. This would be entirely repugnant to the settled rules in regard to contracts. It is at least clear that the appellant, to sustain his defense, must maintain one of two propositions, viz: that the omission of the landlord, or at all events his refusal when called upon, to appoint a place of payment, worked a forfeiture of the rent; or, that the tenant might be subjected to the accumulation of the rent from year to year, without the power of discharging it. But the law in my judgment would not tolerate the doctrine, either that the rent, for which the tenant is presumed to have received a full equivalent, is absolutely discharged and lost by the omission or refusal of the landlord to appoint a place to receive it, or that the tenant who has fixed a day certain for the payment, may be kept at bay and forced to wait, until the lessor chooses to make such appointment. All the analogies of the law are against this assumption. For instance: in case of a note or obligation payable in ponderous articles, such as lumber or iron; the creditor has a right to point out the place of delivery, and it is the duty of the debtor to call upon him to do so; but if he omit or refuse to name a place, the debtor is not thereby discharged, but must still pay. It is not, however, very definitely settled, what course the debtor is to take under such circumstances. Chipman, in his essay on contracts, after remarking, that the books, on account of the infrequency of such cases, afford no certain guide as to what is to be done, says, “ Yet when such a case does arise, it must be a reproach upon the law, if it do not point out the duty of the debtor, and enable him to do, that which will legally discharge him from the contract.” (Chipman on Cont 26. See also Barns v. Graham, 4 Cowen, 452.) So it may be said in this case, with even greater force, on account of the steady accumulation of the indebtedness, that it would be a “reproach upon the law” if it did not afford some means by which the tenant could relieve himself of the obligation. But I apprehend that no such reproach need rest upon our judicial system, as the whole difficulty consists in the want of a certain and fixed place of payment; and that is a difficulty which the law will be found in all cases to remove, by appointing a place for the parties, where they have omitted to do it for themselves. If, then, we adopt the dictates of reason and justice, or the rules of law in analogous cases, we must conclude, that when the time arrived for the payment of the rent upon this lease, if the landlord failed to point out the place of payment, there was still some mode in which the tenant could legally perform his covenant. What then was that mode ? The question is, I think, sufficiently answered by the established rules on the subject. There is much less difficulty in such a case when the debt to be paid consists of rent, than when it arises upon an obligation at large ; because in the latter case, the place of payment when not fixed by the terms of the contract, depends upon a variety of circumstances, all of which are to be considered: whereas rent is a mere product or issue of lands, and on account of this connection, the law uniformly holds, that when no other place is fixed for the payment of rent, it is payable upon the land out of which it issues. ( Walter v. Dewey, 16 John. 222; Hunter v. Le Conte, 6 Cowen, 728.) I see no difficulty therefore in coming to the conclusion, that the rent in this case, until some other place was designated, was payable upon the demised premises; and if so, it can need neither argument or authority to prove, that it was the duty of the tenant to pay or tender the rent upon the land, and that he would be in default if he omitted to perform this duty. This must of course follow, because the only obstacle to the payment of the rent being removed by the act of the law in fixing the place, the tenant is left without excuse for not complying with his covenant. It is the same in all respects as if the place was fixed by the contract, or by the act of the parties. But we are not driven to rest our conclusion upon this deduction from general principles alone. It is amply sustained, I think, by direct authority. In the case of Remsen v. Conklin, (18 John. 447,) the reservation of rent in the lease was as follows: “ Yielding and paying, &c. yearly, and every year, (after four years from the 1st of August, 1794,) upon the first day of February in every year, at such place in the city of Albany as the said parties of the first part, their heirs or assigns shall for that purpose, from time to time appoint, the yearly rent of ninety-two bushels, and four-fifths of a bushel of good merchantable winter wheat.” The land leased was in Oneida county. The rent was suffered to remain in arrear for a number of years, and the executors of the lessor brought covenant against the assignee of the lessee. The defendant pleaded in bar that the plaintiff had not appointed a place in the city of Albany for the payment of the rent; and to this the plaintiff demurred. The court sustained the demurrer, and Spencer, Oh. J. after remarking that it became the duty of the landlord, if he would have the rent paid in Albany, to appoint a place and give notice to the defendant, adds, “and in case this appointment was not made and notice given, the consequence would be that the defendant would be absolved from delivering the wheat in Albany, but still he would be bound to deliver it on the land, for rent issuing out of land, when no place is appointed, is payable on the land, (1 Inst. 210, 211; Bac. Abr. Tender, C.) and hence it became necessary for the defendant to plead a tender, or a readiness to deliver the wheat upon the land.” It is true that this case, so far as it holds that the rent under the covenant in that lease, in default of the landlord to appoint a place of payment, was payable upon the land, was overruled in the subsequent case of Lush v. Druse, (4 Wend. 313,) which was an action of covenant upon a similar lease. It was there held that the parties having designated a place of payment at a distance of fifty miles from the land: to wit, the city of Albany, the rent could not in any event be payable upon the land, but must be paid somewhere in Albany. But it was also held, that the tenant was bound to seek the obligee to ascertain where he would receive the rent, and that if the landlord could not be found and no place was appointed, that the tenant might pay at any suitable place in the city of Albany; and it was assumed that he must fay or make a tender of the rent at some place. Now it is plain, that the ground upon which the court in Lush v. Druse, departed from the decision in Remsen v. Conklin, viz: that the parties had, by the terms of their agreement manifested a clear intent, that the rent should be paid at a distance from the land, does not apply to the present case; because one branch of the alternative provision, as to the place of payment in this case is, that the rent is to be paid within lot No. three, in the manor of Livingston, which lot embraced the demised premises. It cannot be said therefore in this case, that the parties have agreed that the rent shall at all events be payable off the land. The case is therefore even stronger in favor of the land itself as the place of payment, than if no place whatever had been named. Hence I am inclined to think that under the covenant in this case, it should be held as it was, and but for the peculiar terms of the covenant, would have been correctly held in Remsen v. Conklin, that the lessee had a right, if he-received no notice of any other place, to tender the rent upon the land, without even calling upon the lessor to make an appointment. But if it be held as was held in Lush v. Druse, (supra,) that the tenant was bound to seek the landlord for the purpose of ascertaining where he wished the rent to be paid, it would not affect the result in this case. Because whether the landlord omitted, without being called upon, or refused when called upon, to designate any place, it was equally the right and the duty of the tenant, as clearly appears from the cases cited, to pay or tender the rent at such place as the law would designate ; which in this case, would no doubt be upon the demised premises. In any view of the case, therefore, the defendant was in default, and the ruling of the judge at the circuit was in all respects correct. The judgment should be affirmed. Judgment affirmed.