Smith vs. Hall & al., 11 Me. 295

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.