
    Almost Z. Lewis, Appellant, v. Charles Mason, Respondent.
    
      Contract for the board and lodging of a lunatic — a proposal by the committee to limit it to lodging only — until accepted the liability of the committee for both continues.
    
    The committee o£ a lunatic, who had made a contract with one Lewis for the board and lodging of the lunatic, upon learning that the lunatic was lodging •and not boarding with Lewis, asked the latter what he would take for the lunatic’s lodging merely, to which he replied that if the lunatic did not wish to board with him he did not want to bother with him.
    
      Held, that the reply operated as a notice to the committee that if the lunatic ' continued to remain in Lewis’ house it must be under the contract; and that, until the committee gave notice of his election to terminate the contract, Lewis was justified in treating the contract as existing, and in holding the committee liable at the contract price.
    Putnam:, J., dissented.
    Appeal by the plaintiff, Aim on Z. Lewis, from a judgment of the County Court of Saratoga county in fav.or of the defendant, entered in the office of the clerk of the county of • Saratoga on the 10th day of January, 1899, affirming in part and reversing in part a judgment of a justice of the peace in favor of the plaintiff..
    
      Charles B. Patterson, for the appellant.
    
      Eáwa/rd M. Angelí, for the respondent.
   Parker, P. J.:

It is clear from the evidence of the plaintiff in this action, that he contracted with the defendant to ^furnish board and lodging to the lunatic, Barclay Angelí, for the price of three dollars per week; and that, in pursuance of such agreement, Angelí commenced to, board and lodge there on April 1, 1898, and that he left on August 2, 1898.

From the evidence of the defendant, it also seems clear that he agreed to pay the plaintiff three dollars per week for the board and lodging of the lunatic — of whom he was committee, “ if he was willing to board there, as he seemed to be; ” and that he moved the property of such lunatic to the plaintiff’s house, and that the lunatic, himself, thereupon commenced to board and lodge there. Both parties conceded that he boarded there only a day or so, and then, owing to some freak of his own, went to other places to get his meals, but continued his room ¡and lodging at the plaintiff’s all the time up to August 2, 1898. And all that time provision was made by the plaintiff for the lunatic’s meals and a place was always set for him at the plaintiff’s table. The plaintiff seems to have acted upon the theory that the lunatic was liable t© return at any time, and that at all times he had the right so to do. Nothing was said by the lunatic as to his reason for not taking his meals at the plaintiff’s, nor did he ever express any intention to cease doing so. The defendant, some time after he learned that the lunatic was not taking his meals at the plaintiff’s, inquired of the plaintiff what price he would ask per week for the lunatic’s lodging merely; and the plaintiff replied that if he did not want board there he did not want to bother with him. No notice was ever given by the defendant to terminate the continuance Of the contract for the board and lodging, and it is very clear that all the time the lunatic was lodging with the plaintiff he was there under the contract for board and lodging at three dollars per week.

The justice before whom the action was tried gave judgment for the plaintiff, for the full number of weeks the lunatic lodged there, at the rate of three dollars per week. Upon an appeal, the County Court modified the judgment by reducing it to ten dollars, and as so modified gave judgment against the defendant, with ten dollars costs and disbursements of the appeal. From such judgment of the County Court, this appeal is taken.

Upon the facts before the justice he was correct in rendering judgment for the amount which the plaintiff claimed, and his judgment should have been affirmed unless some error was made by him in the admission or exclusion of evidence. When the plaintiff refused to fix a price for lodging the lunatic merely it was, in effect, a notice to the defendant that if the lunatic stayed with him at all it must be under the contract then existing between them. And if the defendant was not content with that he should have moved the' lunatic and his belongings from tliei plaintiff’s house. Until he did .so, and thus terminated the contract between them, plaintiff' had the right to act upon it as still existing :and to consider the defendant as liable thereon.

As to improper exclusion of evidence upon the trial, it appears "tlia-t on the cross-examination of the plaintiff he was asked, in substance, if he remembered a conversation he had had with the defendant and Angelí, within two weeks after the contract was made, at which the price of a room was discussed. This was objected to by the plaintiff’s counsel “as assuming,” incompetent, and on the ground that witness had already answered, and the objection was sustained. The witness had just answered that he never had a second conversation with the defendant about the price of a room without board ; that “ Mr. Mason never came and tried to make a second bargain for a room when Angelí would not board there.”

The question excluded was but the same one in another form and had already been fully answered.

Afterwards the defendant, on his direct examination, had testified io a conversation between the lunatic and the plaintiff in April, soon after the goods were moved there, to the following effect: “ Barclay asked him what was it that I could have a room for if I did not board there. Barclay said, ‘"Was it $1.50 per month?’ Lewis said, ‘Yes, I think so.’” It did not appear that the defendant took any part in that conversation, or even that he was present and heard it. Therefore, on plaintiff’s motion, it was stricken out.

Subsequently the defendant ivas asked by his counsel: “ What was said in that conversation by you or Lewis in regard to Barclay only taking room there, and price of same ? ” This was excluded on plaintiff’s objection; and it is this alleged error upon which the County Court based its judgment.

If this should be considered as the exclusion of a conversation between the defendant and Lewis, in which the price of a room was fixed, it would probably be reversible error on the part of the justice, but an examination of the record shows that it should not be so considered. It evidently refers to the same conversation which the defendant had just testified to, and which had been stricken out, and, as he then gave it, was one between the plaintiff and the lunatic only; and, as he then gave it, was clearly not an agreement on the plaintiff’s part to take the lunatic as a lodger merely. It was evidently a conversation about some prior conversation had between plaintiff and the lunatic, possibly one before the contract with defendant was made.

Moreover, the defendant had just testified on his cross-examination that he had three different conversations with the plaintff only: “ First in March.” That was the one when the contract was made. “ Third, was latter part of July. Second, I can’t fix definitely. I think it must have been the middle or latter part of June, as near as I can fix it.” This was evidently the one which, he had said was soon after he learned that the lunatic was not boarding, with the plaintiff, and in which the plaintiff told! him that he did not want to bother with the lunatic unless he boarded there.

From this evidence of the defendant it is clear that the talk with Barclay. ” was not a conversation in which the defendant took any part, or which resulted in any modification of the contract, and its exclusion was not, therefore, error, for which the justice’s judgment should have been reversed.

I find no errors in rulings upon the trial, and, therefore, the judgment of the County Court should be reversed and that of the justice affirmed.

All concurred, except Putnam, J., dissenting.

Judgment of the County Court reversed and that of the justice affirmed, with costs in this court and in the court below. '  