Wheadon v. Olds.

relatively it influenced the entire agreement to take the oats at 1,900 bushels. One ingredient of estimating the residue, as talked of, was the assuming that the supposed 500 bushels was one-fourth of the pile, which would operate unfavorably to the plaintiff, if he reasoned from the size of the smaller to that of the larger pile. Here was an admitted error, which certainly influenced the conduct of the plaintiff to the extent of 250 bushels; and, as we must take it on the finding of the jury, to the full amount which the oats came short of the 1,900 bushels. All the excess of payment arose from a count of half bushels as bushels. And the only question in the least open is, whether an agreement, based on that mistake, to accept the oats at the plaintiff's own risk of the quantity, shall conclude him. The mistake which entitles to this action, is thus stated by the late Chief Justice Savage from the civil law: "An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist." Mowatt v. Wright, 1 Wendell, 360. He cites the words of 2 Ev. Poth. 437. And see 1 Dom. 248, B. 1, tit. 18, § 1, pl. 1. In judg ing of its legal effect, we must look "to the regard which the contractors have had to the fact which appeared to them to be true." 1 Dom. 250, B. 1, tit. 18, § 1, pl. 11. And when we see that the agreement is the result of such a regard, or, as the judge said to the jury, is based upon it, I am not aware of any case or dictum, that, because part of the agreement is to take at the party's own risk, or as the parties expressed it here, hit or miss, it therefore forms an exception to the general rule. The agreement to risk was, pro tanto, annulled by the error. The money was paid under a contract void for so much as the oats fell short of 1,900 bushels. The effect would have been very different, had the truth been known to the plaintiff. Domat as before cited. The foundation of the arrangement to take at the plaintiff's risk, was a misreckoning, one number being put instead of another, "which," says Domat pl. 12, "is a kind of error in fact different from all other errors, in that it is always repaired."

The motion for a new trial is denied.

See

Crooke v. Slack.

CROOKE & FOWKE vs. SLACK and others.

A steamboat may be proceeded against by attachment for a debt contracted by the master, &c. for wood furnished the boat to supply her furnaces. The language of the Revised Statutes is broader than that of the act of 1798, under which I was held that a debt contracted for wood was not a lien.

PROCEEDINGS against ships and vessels. This was a motion to set aside the report of a referee, to whom had been referred the claim of the plaintiffs inan action on a bond executed by the defendants, to obtain the discharge of a steamboat from an attachment issued against her. The only question in the case was whether a debt contracted for wood, furnished a steamboat to supply her furnaces, was a lien within the act authorizing proceedings against ships and vessels by attachment. The referee decided that it was within the act, and accordingly allowed the plaintiffs' claim.

M. T. Reynolds, for the defendants.

S. Stevens, for the plaintiffs.

By the Court, NELSON, Ch. J. I am inclined to think that wood or coal furnished a steamboat for her usual trips should be construed as coming within the terms of the statute giving a lien and summary remedy, for the collection of the debt created thereby against ships and vessels, 2 R. S. 493, § 1. The terms of the act are, whenever a debt shall be contracted "for such provisions and stores, furnished within this state, as may be fit and proper for the use of such vessel," &c. The word provisions, strictly considered, would be confined to such articles as enter into the food or subsistence for hands and passengers; but stores is a more general term, and may fairly embrace the article in question.

In Johnson v. The Steamboat Sandusky, 5 Wendell, 510, the court would, I think, have embraced wood within the term

Carr v. Ellison.

supplies, used in the act of 1798, 1 R. L. 130, had it not been for the connection which seemed to confine it to such articles as enter into the construction or equipment, and became a part of the vessel itself. To avoid this difficulty the language has been varied and transpose in the Revised Statutes, and this case is therefore taken out of the authority of that above cited.

Motion denied.

CARR and others vs. ELLISON.

A covenant to renew a lease under the same covenants contained in the original lease, is satisfied by a renewal of the lease omitting the covenant to renew.

ERROR from the New-York C. P. This was an action of ejectment to recover possession of a house and lot of land in the city of New-York, On the trial, the plaintiff made out a title in fee to the premises, derived from Thomas Ellison. The defendants claimed under William Corwin. Thomas Ellison being seised in fee of the lot of land in question, demised the same to Corwin for the term of 21 years, from the first day of May, 1793, at a certain yearly rent. By the lease, Corwin covenanted that on or before the first day of November, 1793, he would at his own proper cost and charges, erect and finish on the land a two story frame house, and at the end of the term would yield and surrender up the same to Ellison. It was agreed that such buildings as Corwin should erect on the lot should, at the end of the term, be appraised by indifferent persons, to be chosen by the parties; and Ellison covenanted that he would pay Corwin the appraised value, "or he, the said Thomas Ellison, his heirs or assigns, shall renew the lease unto the said William Corwin, his executors, administrators or assigns, for the term of twenty-one years more, for and under the same yearly rents, and under the same covenants as is herein before granted." Corwin, and afterwards the defendants under him, entered and held the premises

Carr v. Ellison.

under the lease, and paid the stipulated rent down to the first day of May, 1835, the end of the second term of 21 years, but it did not appear that the lease was in fact renewed, at the end of the first term in 1814. The defendants insisted that the lease had in effect been renewed in 1814, by the act of the parties, with the same covenants as those contained in the original lease: and in April, 1835, they called on the plaintiff to appoint an appraiser, and to pay the value of the buildings which the lessee had erected on the lot, or to renew the lease for another term of 21 years with the like covenants as those contained in the original lease. The plaintiff refused to do either, and after the expiration of the second term of 21 years, in May, 1835, brought this action to recover possession of the property. On this case the court below charged the jury that the plaintiff was entitled to recover; the defendants excepted to the opinion, and judgment having been entered against them, they now bring error.

A. Taber, for plaintiffs in error.

M. T. Reynolds, for defendant in error.

By the Court, BRONSON, J. On the construction for which the plaintiffs in error contend, the lessor covenanted in case the value of the buildings was not paid, for a perpetual renewal of the lease in other words, he agreed to renew the covenant for a renewal, as well as the other covenants contained in the lease. The courts lean against such a construction of the contract as will lead to a perpetuity, and will not infer an agreement for a second renewal from a general provision for a renewal of the lease with similar covenants. Rogers v. Hunter, 6 John. Ch. R. 215. Piggot v. Mason, 1 Paige, 412. Tritton v. Foote, 2 Bro. Ch. 636, and note (a) by W. Eden, p. 639. The parties did not, I think, contemplate more than two terms of 21 years. If the stipulation for "the same covenants" in the new lease, include the covenant for a renewal, it included also the covenant on the part of the lessee that he would erect a house on the land on or before the first day of November, 1793-a thing which

i

Carr v. Ellison.

was impossible in 1814, when the first term expired. Or, if we reject that part of the stipulation which relates to time, the covenant to build will still remain, and then the contract was that the lessee should erect a new house on the demised premises as often as he should obtain a renewal of the lease. It is difficult to suppose that this was the intention of the parties. The good sense of the contract seems to be this: the lessee agreed to erect a frame house on the premises, and the lessor stipulated to pay him the value of the building at the end of the term, or to compensate him by a renewal of the lease "for the term of twentyone years more." After the lapse of a second period of twenty-one years, a wooden building could be of no great value, and the parties neither stipulated for pay, nor for a further renewal of the lease.

Although the lease was not in fact renewed at the end of the original term, the lessee and those claiming under him, had held the property for a second term of twenty-one years before this action was brought, and they have no longer any right to the possession either at law or in equity.

Should it be conceded that the defendants were entitled to a renewal of the lease in 1835, their remedy would either be in a court of equity for a specific performance of the contract, or by an action at law to recover damages for a breach of the covenant. The legal title is in the plaintiff, and nothing can be better settled than that in the action of ejectment, the legal will prevail over an equitable title.

It is not necessary to inquire whether the defendants were entitled to notice to quit, as no such question was made on the trial.

Judgment affirmed.