
    Smith vs. Hall & al.
    
    An action of assumpsit for use and occupation was referred —u the referees to decide according to law” It was in evidence before them that the plaintiff was the owner of certain mills, which he rented to one Maguire for the term of one year, from the 6th of July, 1826, “ and such further time as should be agreeable to the parties.” On tbo 15th of May, 1827, the lessee of the plaintiff gave the defendants alease of the premises for one year — a portion of the rent to be paid at the end of six months, 11 after deducting all sums said (lessees) may or have paid for the repairs on said mills.” On the 20th of September, the lessee of the plaintiff transferred all his interest in the lease of the defendants to one E. T. and the latter on the same day drew an order on the defendants in favor of the plaintiffs, for the payment of “ all sums of money that may or have become due for rent of the mills, &c. .according to the tenor of the lease” The referees in their award deducted a large amount from the plaintiffs claim on account of repairs made by defendants — and it was held that in so doing they had violated no principle of law.
    
    In several other particulars also, the Court sustained the report of the referees on the ground that the questions decided were questions of fact.
    
    This action was assumpsit for the use and occupation of certain mills at M^scassei, owned by the plaintiff, and was referred. The terms of the submission were to decide the cause according to law. Prior to the submission the defendants had tendered and paid into Court the sum of $134.
    The referees made a special report in favor of the defendants and referred to certain papers from which the following facts may be gathered.
    
      Joseph E. Smith, the plaintiff, on the 6th day of July, 1826, being the owner of a farm in Wiscasset, called Birch Point, on which were situated certain saw mills, on that day leased it to John Maguire to hold for the term of one year, and such further time as should be agreeable to the parties. On the 15th day of May, 1827, Maguire leased the mills and certain privileges to the defendants for one year, for a price depending upon the amount of lumber sawed. By the terms of the lease Maguire was to do certain specified repairs, and whatever else was necessary to make the mills rentable. Six months from the date of the lease a payment of rent was to be made, “ after deducting all sums said Hall &f Boyd may have paid for the repairs on said mills.”
    On the 20th of September, 1827, Maguire transferred all his interest in the lease to Edward Tufts, who on the same day drew an order on the defendants in favor of Smith, the plaintiff) requesting them to pay the latter “ all sums of money that may or have become due for rent of the mills at Birch Point, according to the tenor of the lease.” This was accepted by the defendants and passed over to the plaintiff.
    
      May 24, 1828, the defendants addressed the following letter to the plaintiff. “ Our lease for Birch Point mills expires on the 28th instant. We wish you would inform us by letter whether we can have them long enough to finish our logs on the terms that we have had them the year past.” “ We do not know yet how much there will be due for the year past, but will let you know as soon as we can ascertain, and shall want you to wait for the pay till we can sell our lumber, with paying you interest for what we may be indebted.” — “We want you to write that we may show Mr. Maguire our authority for keeping them, that we may not be troubled with him any longer.”
    
      June 2d, 1828, the plaintiff’ answered the defendants’ letters as follows, viz; “ Your favors of the 27th and 31st ultimo are received and I should have answered the first of them, but hardly knew what to say to you. The fact is, Mr. Maguire has a lease of the whole of Birch Point, including the mills, which lease it is true may now be terminated at the pleasure of the parties — and yet I have no desire to terminate it as to part of the estate, without at the same time determining the lease as to the whole of the estate — and should I terminate the lease as to part, I know not how the rent could bo apportioned, and I am satisfied that without an action, or my personal presence, Mr. M. would not give up the whole estate and quit the house, which I might wish him to do. I will however say, that I have now the same mind upon the subject which 1 lately expressed to Mr. Hall in Boston. It is perfectly agreeable to me that you should hold the mills for another year upon the same terms as during the last year — and hope you will be able so to do by consent of Mr. M., to whom I shall write by same mail tvith this, to induce him to consent and give you less trouble for the future. You will, however, understand that no more repairs are to be made without the consent in writing of my agent and attorney, my brother Samuel, to whom you will please to apply in case repairs should be necessary— and I have already given him instructions upon the subject— I hope you will get along in this way with satisfaction to yourselves and Mr. M. for a few months, and until I visit Maine, which I propose to do in all August next, at farthest,” 8tc.
    The referees, after reporting generally in favor of the defendants that the plaintiff had no cause of action, and that the defendants recover their cost, add the following, viz : “We have made the above award on the ground thal in and by the terms of the original lease from Maguire to the defendants, the mills were to be in good repair at the time possession was taken by the defendants, and the whole evidence in the case proves that at the time of the commencement of said possession by the defendants, said mills were not in rentable repair; and that it would have cost from $800 to $1000 to have put them in such repair. It further appears, that during the existence of said lease and possession by the defendants, that sundry orders were drawn by said Maguire on said Hall, the acting tenant, for pay for sundry sums expended in repairs on said mills, which sums were paid by the defendants — and we have allowed for said repairs, deducting what would have been the ordinary repairs in case said mills had been put in tenantable repair at the time defendants took them into possession. There being no evidence of any possession in the plaintiff, actually taken, during the tenancy of the defendants, we have considered that all acts of Maguire, the lessor, during all of the term defendants occupied, were binding on the plaintiff in this action — -and have allowed all of said repairs thus made by said Maguire and paid for by said tenants, and the repairs made by them by order of said Maguire. And we have made this report on the ground, that the plaintiff was at no time, during said lease and occupancy by the defendants, in the actual possession of the premises. We further make the original lease from Maguire to the defendants, and the lease, from the plaintiff to Maguire, the original deeds of mortgage to said Smith — the order of Tuffts on the defendants — and letters from Hall and Boyd to the plaintiff, and from Hall to Maguire, a part of this case, that the Court may determine whether we have given a true legal construction to the transaction between the parties,”
    
      Horace Rawson, > Referees.
    The referees, on being called, confirmed these facts — and added that there was evidence before them that Maguire had committed waste before leasing to the defendants, by cutting down and selling some fir trees.
    Upon these, facts the question was upon, the acceptance of the report of the referees.
    
      Smith, pro se,
    
    objected to the acceptance of the report. The referees being bound to decide according to law, should have been bound by legal principles in the admission of testimony. They erred in receiving parol evidence to establish an agreement in regard to the rent, when the terms of the agreement in this respect were incorporated into the lease. By that instrument the repairs were to be made by the defendants principally — and what were not to be made by them, were to be made by Ma-guire, before the commencement of the term — and the defendants’ taking possession was an admission that all the repairs had been made, that were agreed to be made. Mumford v. Brown, 6 Cowen, 478; Fowler Of al. v. Bott &f al. 6 Mass. 63.
    The referees also erred in saying that there was no evidence of any entry by the plaintiff during the occupancy of the defendants. The facts reported by them show the contrary. The application of the defendants to the plaintiff by their letter' — the answer of the defendant, giving him permission to occupy — the showing of the authority to Maguire, and declining to have any thing to do with him — all went in law to show an entry of the plaintiff — to which may also be added the fact of the forfeiture of the lease by Maguire, by not paying rent' — 'by committing waste — by giving a lease extending beyond his own term —■ and by not repairing. It was at the election of the plaintiff to consider the lease of Maguire at an end, and the defendants his tenants —■ and he did so elect. It was not necessary for him to give Maguire any notice to quit. 2 Pick. 70, 71; 2 Strange, 1128; Co. Lit. 214, B; 2 Cowen, 133.
    The referees not only erroneously found that the plaintiff had never been in possession, but they erred still more in saying that Maguire was, and that he was the agent of the plaintiff, and had full power to make an agreement with the defendants in relation to making repairs. Would the plaintiff have been at the pains to procure the order drawn on the defendants, and to obtain the assent of Maguire, if he, Maguire, was to have the power to destroy the whole arrangement with a breath ? There is nothing in the case shewing this pretended authority of Maguire.
    
    But if the plaintiff was bound to repair, the defendants have no right to do it and charge him therefor — at best, they can only have an action on the covenants — if the claim be good, the breach of covenant by one party cannot be a set-off to a breach by the other party.
    
      Fessenden and Barnard,
    
    cited the following authorities on the part of the defendants. Cogswell v. Brown, 1 Mason, 237; Gerrish v. Bearce &f al. 11 Mass. 193; Bigelow 8f al. v. New-ell, 10 Pick. 343; 4 Esp. R. 59; Peake’s Ev. 241; Allen v. 
      Thayer, 17 Mass. 299; Codman Sf al. v. Jenkins, 14 Mass. 93; Binney v. Chapman, 5 Pick. 124; Rising fy al. v. Siannard, 17 Mass. 287.
   Mellen C. J.

The question is whether the report of the Referees shall be accepted. By the terms of the submission they were to decide the cause according to law. The objection of the plaintiff is that they have not so decided. As to all questions of fact they are the exclusive judges, acting as it is admitted they have acted, with integrity and fairness. — They have reported that the plaintiff has no claim on the defendants beyond the sum of $ 134 which they tendered and deposited in Court. It appears that the plaintiff is owner of the farm and saw mills in question in Wiscasset: that on the 6th of July, 1826, he leased the same to Maguire for the term of one year from the first day of said July, and so much longer time as should be agreeable to the parties. It further appears by a letter, referred to by the referees, from the plaintiff to the defendants, bearing date June 2d, 1828, that the lease was then in existence and the relation of landlord and tenant was then subsisting, nor is there any evidence before the Court shewing that it has ever been determined; on the contrary the referees have certified that there was no evidence before them that the plaintiff, during the tenancy of the defendants, ever took any possession of the premises; this fact is perfectly consistent with the continued existence of the lease to Maguire. The lease from Maguire to the defendants bears date May 15, 1827. This is a lease of the mills and privileges, on the abovementioned farm, but not of the farm, for one year. The case presents no evidence of any express lease from the plaintiff to the defendants of the mills, in writing or by parol: If the relation of landlord and tenant did not subsist between the plaintiff and defendants during their occupation of the mill, how then could this action be maintained for any thing more than the amount due on the order of Tufts upon the defendants and accepted by them; and that amount has been settled by the referees, upon the terms of the lease from Ma-guire to the defendants, which is specially referred to in the order, to be less than was tendered on account of that order. On this point we would refer to the plaintiff’s letter of June 2d, 1828, which is hereafter mentioned, and from which certain extracts are made for another purpose. Does not this letter show a continuing right in Maguire: and does any thing, show a possession or right of possession in the plaintiff? If these facts are correct, as they seem to be, on what ground could the referees have consistently reported any sum beyond that which has been tendered ?

But the referees seem to have placed their decision on another ground or view of their own and a different process of reasoning. To this we now direct our attention. They state in their summary of reasons that they considered that all the acts of Maguire, the lessor, during all of the term the defendants occupied, were binding on the plaintiff in this action. If this opinion was the result of evidence before them, clearly it is not subject to our revision or control. That evidence might be direct or circumstantial; express or implied. On this point no questions were proposed to either of the referees, though they were all examined as witnesses at the hearing of the objections. But we will look at the facts. We have already alluded to a letter from the plaintiff to the defendants, dated June 2d, 1828, in which he speaks of his lease to Maguire as then continuing in force. That letter was written in answer to two letters from the defendants to him. The first is dated May 24, 1828, in which they stated that their lease of the mills would expire on the 28th of that month, and inquired whether they can have them long enough to finish their logs on the terms on which they had them the year past; and observe that they do not know how much would be due him for the past year: they add, that they wished him to write that they might show Maguire their authority for keeping the mill. The second letter is dated May 31,1828, and expresses nearly the same ideas and wishes as the other. On the 2d of June the letter in answer was written by the plaintiff to the defendants. In this letter he says, among other liings, “ Maguire has a lease of the whole of Birch Point, including the mills, which lease, it is true, may be terminated now at the pleasure of the parties, and yet T have no desire to terminate it as to part of the estate, without at the same time terminating the lease as to the whole. It is perfectly agreeable to me that you should hold the mills for another year upon the same terms as during the last year; and hope you will be able so to do by consent of Mr. Maguire, to whom I shall write to induce him to consent and give you less trouble for the future.” Now, according to these letters, in what character was Maguire acting during the year 1827, and at the time those letters were written ? Was he acting in his oum right as the lessee of the plaintiff, and thus entitled to the rents from the defendants; or was he acting as the agent of the plaintiff, as supposed and considered by the referees to have been the case ? If he was acting in his own right and for his own benefit, we have before expressed our opinion what would be the legal result. Is there not evidence that he acted as agent, though not in form yet in substance and reality? The lease was for one year from May 15, 1827, and yet the defendants in their letter of May 24,1828, addressed to the plaintiff, say, “We do not know how much will be due you for the past yearthey also inquire whether they can have the mills on the same terms as the last year. Why were these remarks and inquiries made of the plaintiff, if he was not interested? At any rate, the conclusion to which the referees were conducted in their inquiries was not the decision of any question of law. On either view of the cause, how can the Court say that the referees have decided contrary to legal principles ? There is no proof that any parol evidence was offered to contradict, control or vary the language of either of the leases. It has been urged that the voluntary entry of the defendants and their taking possession on the 28?A of May, 1827, was conclusive evidence that the stipulated repairs which were to be made, had been made, and that the defendants are estopped to deny the fact. How are they estopped ? It does not appear that they knew of the deficiences until after they had taken possession; and then the repairs were made by and under the direction of Maguire, at the expense of the defendants; and the plaintiff’s property was rendered more valuable in consequence. Proceeding on the ground that, according to the facts as found by the referees, the plaintiff was bound to pay for the repairs, the objection of the plaintiff, that compensation should be recovered in an action on the covenants in the lease, does not apply: for the defendants have no covenants of the plaintiff to which they can resort. If in either of the views we have taken of the cause, the conclusion at which the referees arrived is a correct one, justice has been done and the report ought to be accepted.

But it has been urged further, that a tenant has no right to charge the landlord with any repairs, without a previous agreement to that effect. But is there not an implied assent to this on the part of the plaintiff? On the 20th of September, 1827, Edward Tufts, the assignee of Maguire, drew his order on the defendants, requesting them to pay the plaintiff “ all sums of money that may or have become due for rent of the mills at Birch Point in this town situated, according to the tenor of the lease, and his receipt shall he your discharge.” This order was presented by Smith and accepted by the defendants. Maguire assented to the drawing and acceptance of this order. The order, by refer-ing to the tenor of the lease, which contains particular provisions as to the repairs of the mills, may be considered as an order for the balance due, and being received by the plaintiff, is an implied assent to the deduction of the repairs. As to the amount of rents and repairs, we have nothing to do with them ; it was the undisputed province of the referees to ascertain and decide both, and this they have done. On the whole, we cannot say that the referees have violated any principle of law in the decision of the causo ; they have drawn their own conclusions from the evidence before them, as they had an undisputed right to do; and the parties must acquiesce in the result.

Report accepted.  