(83 Vt. 386) et al. HUGHES et al. v. FARMERS' NAT. BANK | the Farmers' National Bank and another. A decree was rendered for orators making a preliminary injunction permanent on a master's report, and defendants appeal. Reversed and remanded, with directions. (Supreme Court of Vermont. 7, 1910.) Rutland. May 1. ATTACHMENT (§ 178*)-LEASES-RIGHTS OF [Ed. Note.-For other cases, see Attachment, Dec. Dig. § 178.*] Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. O. M. Barber and J. B. McCormick, for appellants. S. E. Everts, for appellees. WATSON, J. On September 6, 1890, Mary Jane Paul and Jemima Clark made and executed to William Leonard and Charles Schiff a lease of certain land therein described, being part of the Clark and Paul farm, situated in the town of Wells, for the sole purpose of quarrying and manufacturing roofing slate within and from the premises 2. MINES AND MINERALS (§ 66*) - MINING for so long as suitable material therefor LEASE-NEW LEASE-ACCEPTANCE- EFFECT. could be found, or until the slate rock thereWhere tenants under a mining lease accept-in should be exhausted, together with all ed a new lease containing a part of the same rights and privileges necessary and incidenand other property, and containing material provisions inconsistent with the old lease, touch- tal to said business; the lessors reserving ing the rights and liabilities under the grant of the full use for farming purposes of all that five-eighths of the same premises, it constituted part of the leased premises which should a surrender of the old lease by operation of law not be in use in quarrying. The lessees as to so much of the land within the old demise as was included in the new as between the therein covenanted to manufacture roofing lessor and lessees. slate from the premises as long as suitable material could be found for the purpose, and not to cease or suspend working under the lease for more than three months in any one [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 185, 186; Dec. Dig. 66.*] 3. ATTACHMENT (§ 184*)-RIGHTS OF LESSEES -SURRENDER OF LEASE-EFFECT. Voluntary surrender of an old lease by operation of law by the execution of a new one, imposing different obligations, not being a condition in the grant, could not affect the interests of a prior attaching creditor of the rights previously created and then existing against the tenants in the leasehold estate. [Ed. Note.-For other cases, see Attachment, Dec. Dig. § 184.*] 4. MINES AND MINERALS (§ 66*)-QUARRY LEASE-BREACH-FORFEITURE-TIME. Where a lessor made no attempt to forfeit a quarry lease for breach of a condition by the lessees until an attempted re-entry made 2 years after the lessees had discontinued all work in the quarry, during a large part of which the lessor had knowledge that no work was being done or contemplated on that land pursuant to a verbal arrangement by which the lessees were authorized to work adjoining property, on condition of the payment of royalties in arrear, the attempted forfeiture was too late. [Ed. Note. For other cases, see Mines and Minerals, Dec. Dig. § 66.*] 5. ATTACHMENT (§ 180*)-PRESERVATION OF LIEN-EXECUTION. Where certain attachments were levied on the rights of lessees under a quarry lease, and executions were levied on the attached prop erty within five months after final judgments, the attachment liens were preserved, and the attachment creditors were entitled to the proceeds secured under the levies. [Ed. Note. For other cases, see Attachment, Dec. Dig. § 180.*] year, to render to the lessors quarterly in every year a full and true account in writing of the slate manufactured and of all stone for other purposes sold from the premises during the preceding three months, to pay to the lessors at the expiration of each such period the royalties stipulated in the lease, for the privilege granted, and, in case of failure by the lessees to comply with any of these provisions, the lease and all rights thereby granted, at the election of the lessors, should cease and be void, with the right of re-entry upon and to repossess the premis es as though the lease had not been granted. This lease was executed with all the formalities required by law, and was duly recorded in the town clerk's office of the town in which the land is situated. On receiving this lease, the lessees, under the firm name of Schiff & Leonard, entered upon the premises and began quarrying, manufacturing, and selling slate, thus continuing until about June, 1903, when, becoming convinced that the rock on the land within their demise was not of a character from which slate could be made at a profit, and that pay rock could be found outside of that territory on a strip of land a few rods wide to the south and adjoining, they moved their derrick on to this strip and opened a quarry there, called here the new Appeal in Chancery, Rutland County; quarry, which they continued to work until Wendell P. Stafford, Chancellor. Suit by Anthony Hughes and others against they transferred their subsequently acquired rights therein to Hughes as stated below. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 76 A.-3 About the time Schiff & Leonard thus moved | interest in the lease of the quarries in their derrick, and from time to time there- Wells," even though this clause be construed after during the progress of their work on as an intended attachment of defendants' the last-named quarry, they applied to the interest in the premises covered by the lease, lessor, Mrs. Paul, for a new lease, or change extend beyond the land described in the first in the old one, to cover the quarry where lease; for the attachment of all the real they were then working, stating, in sub- estate, etc., situate in the town of Wells and stance, that the opening and working of the bounded as the town is bounded, as the propfirst quarry had been to their great loss; erty of the defendants, relying upon the land that she ought to give them a chance to records to aid in the description of the propget their money back by opening and work- erty intended to be attached, as above shown, ing this new one, which was apparently indicate that the officer then had in mind valuable. Thereupon Mrs. Paul said, in sub- the premises within the limits of the lease stance, that, if they would pay the back there recorded; and there is nothing in the royalties due under the first lease, properly case indicating that in specifying "the lease" work the new quarry, make prompt reports, in the other clause of the return he intended and promptly pay the royalties as provided by the terms of the first lease, they might go on and continue to work the new quarry and she would protect them. These conditions were agreed to by Schiff & Leonard, and they, relying on this agreement, thenceforth worked only the new quarry. Within the time when the work was thus going on under this verbal agreement, and on the 12th day of September, 1903, the attachments of the defendant bank were made. No claim is made but that they were good, and prior in point of time to the rights of the orators, so far as the premises covered by the lease of September 6, 1890, called here the first lease, are concerned. Their validity is questioned, however, as to the strip of land immediately south thereof, containing the new quarry. any lease other than the one of record. Moreover, but one lease is referred to in this clause of the return, and, if it were held that the reference may be either to the premises covered by the verbal lease or to those within the lease recorded, such a holding would render that part of the attachment void for uncertainty. See Whitaker v. Sumner, 9 Pick. (Mass.) 308; Lambard v. Pike, 33 Me. 141; Porter v. Byrne, 10 Ind. 146, 71 Am. Dec. 305. On the 28th day of September, 1895, the landlady executed and delivered to William Leonard and Elizabeth Schiff, wife of Charles Schiff, a lease, properly signed, sealed, and acknowledged. This lease, known as the second lease, was duly recorded on the 28th day of the following month. The name of Elizabeth Schiff was used therein, instead It is unnecessary to determine just how of that of her husband, as a matter of conSchiff & Leonard stood under the verbal ar- venience among the parties; whatever inrangement with reference to the latter quar- terest she took being entirely for his benery; for, assuming their relation to have been fit. And it was agreed on the trial before that of lessees, as claimed by the defendants, the master that, for all purposes of this case, the attachments did not cover that property. this second lease shall be regarded the same The land attached is described in the re- as if the name of Charles Schiff had been turn as "all the real estate with the appur- written therein wherever the name of Elizatenances thereof, with the defendants' right beth Schiff appears, that all references therein equity to redeem the same, situated in the in to her shall be treated as if to him, and said town of Wells and bounded as the said that all rights of the parties in this case town is bounded." Such an attachment by shall be the same as if the lease had been copy in the town clerk's office was sufficient made to and with him instead of her. The to create a valid lien on all the rights and second lease covers all the land within the interests of Schiff & Leonard in the real es- limits of the first, except a strip six rods tate covered by the first lease, since to that wide on the north, and includes additional extent their ownership appeared by the rec- land on the east, also on the south, and withord of land titles, to which reference could in its limits is the new quarry. The term be had for the precise property, or property and the general purpose of the second lease rights and interests, referred to in the re- are alike those of the first. To some other of turn, upon the principle that that is suffi- their respective provisions advertence will be ciently certain which can be made certain. had in a later paragraph. January 16, Young v. Judd, Brayton, 151; Clemons v. 1896, Elizabeth Schiff and William Leonard, Clemons, 69 Vt. 545, 38 Atl. 314. But no as composing the firm of Schiff & Leonard, right or interest had by them in land outside by agreement in writing signed and sealed of the limits of that lease under the verbal by them, and for a valuable consideration, arrangement was apparent of record; hence, sold and assigned to the orator, Anthony as to such rights and interests, the return Hughes, the second lease, together with the was incapable of being reduced to a suffi- rights and privileges therein granted, free cient certainty, and no lien was created and clear of incumbrance. At that time dethereon. Hoy v. Wright, Brayton, 208. Nor fendants John Edwards and John W. Ed of the Paul and Clark farm, except the strip | that unless they did comply with such terms, six rods wide on the north, and the part cov- and pay what they were in arrears, they ered by the second lease. Hughes took his must stop work, and that she would assert said assignment with the expectation and her right to terminate their lease. Yet she purpose of forming a partnership with the continued to receive whatever royalties Edwardses and merging their leasehold Schiff & Leonard offered her, knowing they rights; but later, ascertaining that there were continuing to work; and, when she were royalties in arrear, and that the pro- learned of their assignment to Hughes, she visions of the leases to Schiff & Leonard and called upon him to pay the back royalties, to Leonard & Elizabeth Schiff had not been but he did not do so. No further action was kept and performed by the lessees, he did taken in the matter until March 11, 1896, not make a merger assignment, as had been when she undertook to re-enter upon the contemplated. On the 5th day of March, premises in question for breach of the condi1896, Mrs. Paul and her husband made and tions of the leases by the lessees and their executed to Hughes and the two Edwardses assigns. It is contended by the orators that a lease covering quarry rights upon all of the first lease and all rights under it were said farm, except a strip six rods wide on terminated by this action of the lessor; the north side, which lease six days later whereas, on the part of the defendants, it is was duly recorded. It is found that at the said that the pretended re-entry was a protime of the execution of this lease Hughes ceeding instituted by the orators against was in possession of the premises in ques- themselves for the purpose of defeating the tion, and thereafter so continued with the liens of the bank under its attachments. Edwardses, operating under that instrument. While the first lease was in force, except Judgments were rendered in favor of de- so far as its provisions may have been affendant bank in the two cases in which the fected by the parties thereto entering into attachments in question were made at the the verbal agreement relative to the new March term, 1896, of Rutland county court. quarry and operating under it, the second That term was adjourned without day May lease from the lessor was accepted by the 25, 1896. Executions were issued on the tenants, covering all the premises of the first judgments September 24, 1896, and the same except a strip on the north end six rods were levied on the land and premises de- wide, which strip was three-eighths of the scribed in the first and second leases, re- whole land within the first lease, together spectively. Yet since at the time of the with additional territory on the east and levy Schiff and Leonard owned no right or also on the south. The new lease was for interest in any of the real estate levied up- the same term, and for the same purpose, as on, of which the execution creditor had at the old; but by it an account of all slate least constructive notice, the levy in any made and sold was to be rendered by the event had force only to the extent of the tenants to the landlady monthly instead of validity of the attachment liens, which as quarterly as by the old lease, and by it the we have seen did not extend outside of the slate was newly classified, and the royalty premises described in the first lease; and to be paid materially reduced. The new it is argued that even as to these premises lease contained a provision whereby the tenthe attachment liens had been made inoper- ants agree to pay four months' back royalty, ative by a re-entry of the lessor for noncom- then due, on a future day named, and pliance by the lessees and their assigns with other provisions for the lessor's benefit not the terms of the lease. before existing, with the right of re-entry It is found that Schiff & Leonard did not in case of failure to perform any of the conmake reports as provided in the first lease, ditions therein specified. It cannot be said nor in accordance with the verbal agreement that there was a surrender in fact of the under which the new quarry was operated premises or any part thereof covered by the before the execution of the second lease; old lease, yet we think the acceptance by the that they did not pay the royalties as re- tenants of the new lease containing material quired by the first lease, by the verbal agree- provisions inconsistent with the old lease, ment, or by the second lease. There is still touching the rights and liabilities under the due about $400 of royalties, a considerable grant of five-eighths of the same premises, part of which is for slate made and sold constituted a surrender by operation of law from the first quarry, and more for slate of so much of the land within the old demise made and sold from the second quarry pri- as was included in the new as between the or to the execution of the second lease. landlady and the tenants. Com. Dig. tit. They were in default when the attach- Surrender (1, 2.); Lyon v. Reed, 13 M. & W. ments were made, when the executions 285; McDonnell v. Pope, 9 Hare, 705; 41 were levied, and ever after each to the Eng. Ch. 705; 68 Eng. Reprint, 697; Boynpresent time. Mrs. Paul from time to time ton v. Morgan, 22 Q. B. D. 74; Holme v. Brunduring the working of the quarries by skill, 3 Q. B. D. 495; Dreyfus v. Hirt, 82 Schiff & Leonard made complaint that they Cal. 621, 23 Pac. 193; John R. Davis Lumdid not pay for slate made and sold accord- ber Co. v. Milwaukee First National Bank, ing to the agreements, and informed them 90 Wis. 464, 63 N. W. 1018. However, the sions of the second lease, nor any exercise of such right, affect the rights of the bank under its attachments, since, as to such rights, we have already seen the portion of the leasehold estate under the first demise surrendered, in consideration of law had a continuance, and as to the other portion the record does not show that the term ever terminated, even as between the parties. surrender being voluntary and not by a con- [the lessor for noncompliance with the providition in the grant, it could not affect the interests of the attaching creditor previously created and then existing against the tenants in the leasehold estate. The governing principle of law is stated by Lord Coke as follows: "But having regard to strangers, who were not parties or privies thereunto, lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender, the estate surrendered hath in consideration of law a continuance." Co. Litt. 338, b. And by Lord Comyns: "But the estate shall have continuance notwithstanding the surrender to avoid a prejudice to a stranger." Com. Dig. tit. Surrender (L. 3); Great Western Ry. Co. v. Smith (1876) 2 Ch. Div. 235; Clemento v. Mathews (1883) 11 Q. B. 808; Firth v. Rowe, 53 N. J. Eq. 520, 32 Atl. 1064; Eten v. Luyster, 60 N. Y. 252; Farnum v. Hefner, 79 Cal. 575, 21 Pac. 955, 12 Am. St. Rep. 174. The question of what burdens and liabilities may go with such continuing estate in equity as against the person claiming under the lessee is not presented by the facts of record. At the time of entering into the verbal agreement, Mrs. Paul knew that Schiff & Leonard had discontinued operations on their leasehold, and had moved their derrick therefrom to the place of the new quarry. She was told by them in substance that the business had been carried on at the former place at a heavy loss, and that they wished to be given a chance to retrieve such losses by quarrying and working at the new opening. And the fact that they had not complied with the provisions of the first lease respecting continuous work, the rendition of accounts, and the payment of royalties she well knew. In these circumstances, we think the entering into the verbal agreement effected an intentional waiver by her of the right to insist upon the provision first above named, and, once waived, it could not afterwards be a ground of forfeiture. As no quarrying was subsequently done on the premises of the first lease, there was no occasion for rendering later accounts in connection therewith. And the payment of the royalties in arrear was made one of the conditions of the verbal arrangement. We need not consider whether by force of this arrangement all right of forfeiture for past failures to render account and to pay royalties according to the terms of the first lease were waived by the lessor; for, if they were not, she could exercise such right only by acting promptly. The so-called re-entry was her first attempt, and this, being some 24 years after the discontinuance of all work on or at the old quarry, was too late for the right to be available. Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593, 1103. It follows that whatever may have been the effect of the lease of March 5, 1896, from the lessor to the orators, and of the subsequent so-called re-entry by the lessor, as to the second lease and those having rights under it, the attachment liens were not affected thereby. And, since the executions were levied upon the property attached within five months after the rendition of the final judgments, the attachment liens were preserved, and the bank is entitled to proceed under the levies according to law to the satisfaction of the executions. To the extent that the levies are here upheld the temporary injunction was wrongfully issued, should be dissolved, and the case retained below for the assessment of injunction damages, if any are claimed. Beyond this, the levies being illegal, the temporary injunction was properly issued, and should be made perpetual. Decree reversed and cause remanded, with directions that a decree be entered in conformity with this opinion, the defendants to recover costs in this court. Let the costs below be there determined. (83 Vt. 365) WIGGINS v. E. Z. WAIST CO. (Supreme Court of Vermont. Rutland. May 7, 1. MASTER AND SERVANT (§§ 153, 154*)—DUTY 1910.) OF MASTER-EXPLANATION OF PERILS. It is the duty of one who employs an immature and inexperienced person for a dangerous service to explain to him the perils of his work, and instruct him how to avoid them, but this explanation is not necessary when the person knows and appreciates all the hazards of his employment. Servant, Cent. Dig. §§ 308, 309, 314-317; Dec. [Ed. Note.-For other cases, see Master and Dig. §§ 153, 154.*] 2. MASTER AND SERVANT (§ 265*)—INJURIES TO SERVANT-ACTIONS-BURDEN OF PROOF. to a servant who was nearly 16 years old, and In an action against a master for injuries who was injured while operating a mangle, the burden is on plaintiff to show that he was in need of a warning as to the perils of operating them, where he contends that on account of his the mangle, and instructions as to avoiding youth and inexperience he was entitled to such warning and instructions. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 896; Dec. Dig. § 265.*] ASSUMP3. MASTER AND SERVANT (§ 218*) TION OF RISK. The determination of assumption of risk Nor could any right of forfeiture had by involves a sufficiently exact appreciation of the nature and extent of the danger to enable the | gle." Briefly described, the working parts of servant to estimate the possibilities of his sur- this machine consisted of a steam-heated iron roundings so far as they affect his safety, and, in the case of a youthful servant, it further in- cylinder, about five feet long and two feet in volves a mental and physical capacity to so diameter, which revolved slowly toward the regulate his conduct as to secure his safety as operator. Just in front of this cylinder, and effectually as the circumstances admit. somewhat above its center, was an iron roll about four inches in diameter and of the same length as the cylinder, which revolved The surface of slowly from the operator. this roll was not in contact with that of the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.*] 4. MASTER AND SERVANT (8 265*)-ACTIONS FOR INJURIES-PRESUMPTIONS. It will be presumed, in an action for injuries to a servant, that the servant saw and understood all that a prudent and intelligent person with the same opportunities of knowledge of the material facts and the same capacity for estimating their significance would see and understand; and this rule applies to a minor servant as well as to an adult, when the dangers are so apparent that one of his age, experience, and capacity would in the circumstances and by the exercise of due care know and appreciate them, and know how to avoid them. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 892, 893; Dec. Dig. 8 265.*] 5. MASTER AND SERVANT (8 265*)-ACTIONS FOR INJURIES TO SERVANT-PRESUMPTION. In an action for injuries to a minor servant, it will be assumed, there being no evidence to the contrary, that the servant had the intelligence and understanding that boys of his age usually have. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 265.*] cylinder, but close to it. Another similar roll was placed in a corresponding position behind the cylinder. This, too, turned slowly from the operator. A tightly-stretched, endless, canvas belt, of a width equal to the length of the cylinder, passed over the front roll, down under the cylinder, up the back side of it, over the back roll, and thence down under the machine to the front, and up over the front roll again. In front of this roll, and slightly lower than its top, was a wooden feed table about 17 inches in width. Passing and the cylinder was a heavy iron rod or along over the space between the front roll pipe, which some of the witnesses called a "guard," and some a "guard protector." Its real purpose and its exact location were in dispute, but it was so placed as not to prevent the plaintiff's hand from passing under it and into the machine as hereinafter stated. The operator stood in front of the table, and fed the garments into the machine by placing them on the traveling canvas or into the angle formed by the canvas and the surface of the cylinder, where they would be gripped between the canvas and the cylinder, and, by action of the machine, be pressed against and carried around the hot cylinder. A back tender stood behind the machine, received the garment as it came up over the back roll, turned it over, and placed it upon the top of the cylinder. Whereupon, by action of the machine, it was again carried around under the cylinder, and its ironing completed. The plaintiff had had no previous experience in operating machinery. He began work for the defendant on Monday as a back tender on this machine. He continued at that work until Wednesday afternoon, when without Exceptions from Bennington County Court; warning or instructions he was set to feeding Seneca Haselton, Judge. 6. MASTER AND SERVANT (§ 218*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. Plaintiff, a boy nearly 16 years of age, was directed by his employer to feed a mangle, the mangle consisting of a large steam-heated cylinder, which revolved slowly toward the operator, and a smaller roll placed in front of the cylinder and one behind the cylinder, both the rolls revolving from the operator. Over the rolls and under the cylinder ran a canvas belt, and it was the duty of the operator to place the clothes that were to be run through the mangle upon the canvas belt so that they would be drawn underneath the cylinder. While placing clothes upon the belt, plaintiff's hand was caught between the belt and the cylinder, and he was injured. Held, that the danger of being caught in that way was so apparent that the law will impute to him knowledge and ap; preciation of it, and that he therefore assumed the risk. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig: 88 601-609; Dec. Dig. § 218.*] Action by Lysle L. Wiggins against the E. Z Waist Company. Judgment for plaintiff, and defendant brings exceptions. Judgment reversed. the machine. About half an hour later, his fingers were caught between the canvas and cylinder, drawn into the machine, and severely injured. We may assume, for the record warrants It, Argued before ROWELL, C. J., and MUN- that the iron pipe referred to was, as a deSON, WATSON, and POWERS, JJ. T. W. Maloney and F. C. Archibald, for plaintiff. O. M. Barber and R. E. Healy, for defendant. vice preventing the hands of the operator of the machine being caught between the canvas and cylinder and drawn into the machine, inadequate; but this is not determina tive of the question of liability. The plain POWERS, J. The plaintiff, a youth nearly tiff continued in the service, so the questior 16 years of age, was injured while employed of assumption of risk must be examined. by the defendant and operating a power-driv- The plaintiff's position is that, on account of en ironing machine usually called a "man- his youth and inexperience, he was legally •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indoxes |