(111 A.)

The lessors were not obliged to accept less than the full amount of the installment of rent when it fell due; but, as they saw fit to do so, thereby affirming the lease to the end of the period for which the partial payment was made, they could not later make the inconsistent claim that the lease was forfeited within the same period, because of the nonpayment of the rest. Mayo v. Claflin, cited above.

Ten. [9th Ed.] 497) that the waiver will the right of re-entry. Yet an oral lease was result without reference to the amount of then entered into between Mrs. Taft and rent received, or to the sufficiency of the Russell W. Manter, whereby the latter was distress. allowed to occupy all the premises demised by the original lease, upon condition that he should pay up the arrears of rent on the shoe shine parlor. Accordingly, he then gave Mrs. Taft a check for the sum of $150, to pay the rent for the months of December, 1915, and January, 1916, at $25 a month, and for the months of February and March following, at $50 a month. The record states that the payment of these sums formed a part of the lease under which Manter con[8, 9] Moreover, in the latter part of Janu- tinued in possession as tenant of the original ary, 1916, M. G. Rosenberg offered Gebo a landlords. Just what this means is not quite check of $75 in payment of the rent on the clear, in view of the fact, also found, that cigar store for the months of December, Herritos, as assignee of the term, was in pos1915, and January and February, 1916, but session of the cigar store under the sublease Gebo refused to take it. Thereupon Rosen- from the plaintiff to Phillips and Spylios, berg mailed the check to Mrs. Taft. She until the bringing of this suit. We think, did not accept it, and Gebo returned it to however, that the latter finding, taken with Rosenberg. The time when it was offered to the actions of the Manters in tendering and Gebo was after the service of the notice up- in paying rent as stated in the following on the plaintiff for the surrender of his lease; paragraph, shows that the so-called oral but that is of no consequence, since (as held lease was but an agreement by which Manabove) the notice was subsequently waived. ter, continuing in possession under the lease It appears that Gebo refused to take this of his subtenancy, was to and did thereafter check on the ground that a forfeiture of the recognize the Tafts as his landlords, paying lease had been, and was claimed by Mrs. rent to them as such. Since for reasons statTaft. As before seen, M. G. Rosenberg (the ed above the Tafts had no right to re-enter surety on the original lease), acting for the March 1, 1916, the constructive re-entry they plaintiff, had been in the habit of paying undertook to make by procuring such attornrent by his checks payable to Mrs. Taft, such ment was a substantial interference with the checks always being received and negotiated plaintiff's right to quiet enjoyment of the by her. The offering of the check under leased premises, was unlawful, and without discussion was not a valid tender of money; force in equity. Leader v. Moody, 32 L. T. but no objection was made to the character N. S. 422, 20 L. R. Eq. 145; Case v. Minot, or quality of the tender. The check was re- 158 Mass. 577, 33 N. E. 700, 22 L. R. A. 536. fused solely on the ground that a forfeiture The premises being under a lease to the of the lease was claimed. In these circum- plaintiff for a term of years, the lessors could stances, the tender thus made and refused not disturb him in his possession and enjoyshould be considered a lawful tender. Cur- ment during the term, except it be under the tiss v. Greenbanks, 24 Vt. 536; McGrath v. optional right of forfeiture, properly exerGegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. cised. Stern v. Sawyer, 78 Vt. 5, 61 Atl. 36, Rep. 415; Schaeffer v. Coldren, 237 Pa. 77, 112 Am. St. Rep. 890, 6 Ann. Cas. 356. In 85 Atl. 98, Ann. Cas. 1914B, 175; Duffy v. the circumstances it was entirely incompeO'Donovan, 46 N. Y. 223; Mitchell v. Ver- tent for Manter, without the plaintiff's conmont Copper Min. Co., 67 N. Y. 280. A suffi-sent, to change the nature of his tenancy by cient tender of the sum due as rent on the ci- recognizing the original lessors as his landgar store for the months named, and in fact the amount due the lessors as rent under the original lease after receiving the $83.33 on rent for each of those months as stated above, being made before, in any legal sense, a forfeiture had been declared, the lessors were precluded from thereafter terminating the lease because of the failure to pay the rent or any part of it for those months, or any of them, within the time allowed by the lease before the right of re-entry could exist. Houghton v. Cook, 91 Vt. 197, 100 Atl. 115.

lords. Swift v. Gage, 26 Vt. 224. The relative situation of the lessors, the plaintiff as lessee, and Manter as sublessee, remained unaltered. The original lease continued in force, and forms the basis upon which the rights of the parties are to be determined, unless something thereafter took place, materially changing their legal or equitable status. Smith v. Blaisdell, 17 Vt. 199.

[13] On the 1st day of April, 1916, the attorney and agent for Mr. and Mrs. Manter offered Gebo the sum of $110 in gold, it being [10-12] Since on March 1, 1916, all rent the rent for the entire premises, and in May, previously due by the terms of the original June, and July following, the same attorney lease had either been paid or lawfully ten- and agent offered Gebo the same sum in gold. dered, it follows that there had been no Gebo refused to receive the money só sevbreach of covenant in such respect, giving erally offered, and the said sums were kept

without any present right of possession. They had no such interest in the premises as they undertook to convey to Mrs. Manter; therefore their lease to her was void as against the plaintiff, although their acts in that respect and in connection therewith worked a substantial and unlawful interference with the rights of the plaintiff in the possession and enjoyment of his leasehold estate.

on deposit in the Chittenden County Trust Company; Gebo being told by said attorney and agent that the money was awaiting him there at any time. The amounts of money thus offered were for the whole rent each month in advance, as specified in the original lease, though slightly in excess of the sum due. Each of these offers constituted a legal tender (which was kept good), made before any forfeiture had been legally declared, and precluded the termination of the lease by reason of default in payment of rent for the successive periods to August 1, 1916. It furthering that of the original lease, even though the appears that Mrs. Manter paid all rent due to the date of a settlement she had with Mrs. Taft in July, which would include the rent due on the 1st day of that month for the period to August 1st, the last period covered by the tenders mentioned.

July 1, 1916, defendants Taft, by a written lease executed in due form, demised unto Sarah E. Manter the drug store and basement until May 29, 1920, with an option in the lessee to extend the term to March 1, 1923, and again to extend it until March 1, 1928, which lease was duly recorded. By this lease rent was reserved in the sum of $1,160 yearly, to be paid in equal monthly installments on the 1st day of each month in advance. The lease contains a provision as follows:

"The said lessee herein shall forthwith assign all the right, title and interest of the estate of Russell W. Manter in a certain lease of said store and what is known as the shoe shine parlor, by Russell W. Manter to George Herritos, dated August 10, 1915, including the right as mentioned therein, to terminate the same September 15, 1916 reserving, however, the rent due said Manter's estate under said last-mentioned lease, which rent is to be paid to the said Lovina M. D. Taft, under other provisions of this lease."

Accordingly the assignment thus provided for was made by Mrs. Manter on the same day as was the lease from the Tafts to her, and manifestly the two should be considered together as forming one and the same transaction. This lease was assigned by Mrs. Manter to J. Edward Reeves January 5, 1917, 'which assignment was also recorded.

The Tafts, on the same day of executing the lease last named, also executed in due form a written lease of the cigar store to Gus N. Poulos for the term of 12 years from the 15th of September, 1916, or as soon thereafter as the lessors could obtain possession thereof "from the present tenants," the reserved rent being $840 yearly, payable in monthly installments in advance. This lease was put on record after these proceedings were commenced.

[14] From the fact that at the time of the execution and delivery of the two aforementioned leases the Tafts had no right to exercise their option of re-entry, it follows that they still had only an estate in reversion

[15] The lease to Poulos has a somewhat different standing. It is for a term exceed

latter be extended under the option given therein. At most, however, it is but a lease interesse termini, which is only a right and not an estate; and until the interesse termini ripens into an estate, which will not be until the expiration of the lease to the plaintiff, there can be no lawful entry upon and into possession of the premises; and consequently it did not affect the relation existing between the lessors and the plaintiff, nor the right of the latter to possession. 1 Tiff. Land. & Ten. § 146d; Hyde v. Warden (C. A.) 3 Exch. D. 121, 37 L. T. 567; Edwards v. Wickwar, 1 L. R. Eq. 403. Therefore the record shows that Poulos, without right and paying rent to the original lessors, went into possession of the cigar store, and is so continuing.

[16] The claim that Mrs. Manter surrendered to the Tafts the sublease under which she was in possession of the demised premises cannot be sustained. A subtenant cannot surrender to the chief landlord, unless the latter has first acquired the intervening leasehold estate, which in this instance had not been done. 2 Shep. Touch. *303; 2 Tiff. Land. & Ten. 1311.

[17,18] But the landlords will be presumed to have intended the natural consequences of their acts; and, since their acts shown in the respects now under discussion necessarily resulted in depriving the plaintiff of the beneficial enjoyment of the leased premises, the intent to oust him is conclusively presumed. Powell v. Merrill, 92 Vt. 124, 103 Atl. 259. Indeed, this is also shown by their answer in the claim there set forth that the lease to the plaintiff had become forfeited, that they claimed the right of possession, and that since Mrs. Manter accepted the new lease from them as her landlords, July 1, 1916, as stated above, they "have been and now are in lawful possession of the said premises." The sublease, under which Mrs. Manter was in possession, was for years, and had some years yet to run. She was charged with knowledge of the provisions of the original lease, and she must have known that, acting by their attorney and agent, she and her husband had tendered to the agent of the Tafts, in four successive months, beginning with April 1, 1916, and ending with July, money in gold sufficient to cover all rent due under the original lease up to August 1, 1916. She therefore knew on July 1 that there could be

(111 A.)

ed by reason of the wrongful interference by the defendants with his rights in the premises. In addition, the plaintiff should be granted such injunctive relief as may be deemed necessary for his protection in the enjoyment of his said leasehold estate according to his rights.

Decree reversed and cause remanded, with directions that a decree be entered for the plaintiff, and an accounting had, and damages assessed, all in conformity with the views expressed in this opinion, with costs to the plaintiff.

no forfeiture of that lease on the ground of ages, if any in equity, the plaintiff has suffernonpayment of rent, and consequently she must have further known that the claim of forfeiture then made by the original lessors was in fraud of the rights of the plaintiff as their lessee. In these circumstances we think her acts in the respects named operated as a disclaimer of the relation of landlord and tenant between her and the plaintiff, entitling the latter to consider the sublease as terminated. 2 Tayl. Land. & Ten. § 522; 2 Tiff. Land. & Ten. 1356, 1357; Doe dem. v. Evans, 9 Mees. & W. 48; Doe dem. v. Frowd, 4 Bing. 557; Duke v. Harper, 6 Yerg. (Tenn.) 280, 27 Am. Dec. 462; Blue v. Sayre, 32 Ky. (2 Dana) 213; Willison v. Watkins, 3 Pet. 43, 7 L. Ed. 596. That the plaintiff considered his subtenant's acts as constituting such a disclaimer appears by his bringing this suit to quiet title, praying, among other things, that the Tafts, Mrs. Manter, and Poulos be permanently enjoined from setting up any title or claim to. Brokers the premises, contrary to the terms of the lease to the plaintiff, and from interfering with his possession thereunder.

[19] The wrongful acts done by the landlords in interference with the plaintiff's possession were of a grave and permanent character, amounting to a clear indication of intention on the former's part that the latter should no longer continue to hold the premises as tenant. Such acts constituted an evic tion, and suspended the payment of the whole rent by the tenant. Powell v. Merrill, cited above; Keating v. Springer, 146 Ill. 481, 34 N E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175; Grommes v. St. Paul Trust Co., 147 Ill. 634, 35 N. E. 820, 37 Am. St. Rep. 248.

[20] The possession of Mrs. Manter and Herritos under subleases given by the plaintiff was the possession of the plaintiff. Mrs. Manter, being so in possession, wrongfully accepted a lease from the original lessors, and thereafter paid them rent as her landlords, an incompetent thing for her to do. Although Herritos continued in possession under such sublease until the bringing of this suit, he sooner or later wrongfully attorned to the original lessors. We think in equity the possession of both Mrs. Manter and Herritos continued to be the possession of the plaintiff to enable him to maintain a suit to quiet title. Blanchard v. Tyler, 12 Mich. 339, 86 Am. Dec. 57; Stewart v. May, 111 Md. 162, 73 Atl. 460, 18 Ann. Cas. 856; 16 R. C. L. 622, § 102.

Clearly the plaintiff is entitled to a decree quieting his leasehold title and restoring him to the full enjoyment of his estate; also to an accounting by defendants Taft for all rents and profits received by them on the demised premises, from and including the time of entering into the so-called "oral lease" with Russell W. Manter to the time when such an accounting is had, deducting from the amount so found the rents reserved by the terms of the original lease; also for such other dam

(Supreme

(95 Conn. 448)

GARDNER v. BUECHLER.
Court of Errors of Connecticut.
Nov. 10, 1920.)

contract
proved.

88(14)-No variance between a pleaded and finding of contract

Where complaint alleged that plaintiff was employed as a real estate broker to procure a purchaser for land for $55,000, and that defendant agreed to pay plaintiff a commission of 2 per cent. of said selling price, a finding setting up a like employment, "if he secured a purchaser on terms satisfactory to the defendant," included the terms set up in the complaint, and there was no variance.

2. Appeal and error 197(4)—Claim of variance between contract pleaded and that found not considered, unless raised below.

On appeal by defendant in an action by a broker to recover a commission, a claim that the contract of the complaint was a special one, and that found by the court was a different one, cannot be considered, where made for the first time on appeal.

3. Brokers 71-Tracts held not to show broker agreed to reduction of commission.

Where broker's agreement to sell land was completed when owner told him he would pay a less commission than that agreed on, and no more, and all that remained to be done was to put the agreement of sale with the purchaser procured in writing, the broker did not waive his right to the first agreed commission by merely remaining silent.

4. Appeal and error

173(1)—Objection to recovery raised first on appeal not considered. A claim in an action by a broker to recover a commission that the demand of the

plaintiff on the facts found is too inequitable and extortionate to support a recovery cannot be considered, where made for the first time on appeal.

5. Brokers 69-Increase in value of land and refusal to sell no excuse for refusing to pay full commission.

Where landowner obligated himself to pay an ordinary commission to a real estate broker to procure for him a purchaser of his premises, and the broker procured the purchaser, the mere

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

offered that the sign was the same sign as the 2. Master and servant 418 (6)-Conclusion one which was testified to have been suspended of trial court on issue of relation within Compensation Act reviewable.

prior to the accident.

Conclusion of trial court, in a proceeding

Appeal from Superior Court, New Haven under the Workmen's Compensation Act, that County; James H. Webb, Judge.

deceased was an employee, is a conclusion to be drawn from the facts found, and is not controlling upon the Supreme Court of Errors, but reviewable.

3. Master and servant 367-"Independent contractor" and "employee" defined.

Actions by Sol Bodek and Eli Rozovsky, respectively, against the Connecticut Com-is pany, tried together to the jury upon the same evidence. Verdict was directed in favor of defendant, and from action of the court in denying their motions to set aside the verdict and to grant them new trials, the plaintiffs appeal. No error.

Charles Kleiner and Michael J. Quinn, both of New Haven, for appellants. Harrison T. Sheldon and William B. Gumbart, both of New Haven, for appellee.

PER CURIAM. The above-entitled actions were tried together upon the same evidence, Rozovsky being the driver of the automobile and Bodek a passenger therein at the time of collision of the defendant's trolley car with this automobile.

A verdict in each case was directed for the defendant because of the inadequacy of the evidence to show any negligence of the motorman of the defendant as alleged which was the proximate cause of the injuries and damage sued for.

[1] Our consideration of the evidence satisfies us that the conclusion of the trial court was not only not erroneous, but was the only conclusion which could reasonably be drawn from the evidence. We have no occasion to pass upon the question of the due care of the plaintiffs.

[2] The plaintiffs offered a sign found near the place of the accident some six months thereafter and claimed to have been suspended from defendant's cross wires prior to the accident. This was properly excluded. No proof was offered that the sign offered was the same sign as the one Candee testified he had seen suspended from the cross wires prior to the accident. Without such proof the evidence was wholly immaterial. There is no error.

To determine whether one is an employee within Workmen's Compensation Act or an independent contractor, the test is the employer's

right to direct what should be done, and when and how it should be done, the right to general control, an independent contractor being one who contracts to produce a given result by methods under his own control, and an employee being one who contracts to produce a given result subject to the orders and control of his employer in the means and methods used, and who may be discharged; but, as a rule, it is immaterial how payment is made, whether in wages, salary, or commission, or by the piece or job.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Employé; Independent Contractor.]

4. Master and servant 367-Salesman held an "employee" within Compensation Act, and not an "independent contractor."

A salesman for a company engaged in selling goods on the installment plan through salesmen, held an employee within the Workmen's Compensation Act, and not an independent contractor, where the company retained control over the goods, fixing all the terms of sale, the collection of the selling price with right to discharge him at any time, although he could sell anywhere in the state that he desired and used his own wagon.

Appeal from Superior Court, Hartford County; William M. Maltbie, Judge.

Proceeding by Bertha Aisenberg under the Workmen's Compensation Act to obtain compensation for the death of an employee, opposed by the C. F. Adams Company, Incorporated, and others. There was an award of compensation, which was affirmed by the superior court, and the employer appeals. No

error.

Richard H. Deming, of Hartford, for appellant.

Bernard F. Gaffney, of New Britain, for appellee.

WHEELER, C. J. The principal assignment of error is the conclusion of the commissioner that upon the facts found the deceased was an employee of the Adams Company within the meaning of that term as used in our Compensation Act (General Statutes, § 5388, as amended by chapter 142, § 18 of the Public Acts of 1919). Our act provides that

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