(115 A.) "The ground on which a tenant gets relief, v. Gaines, 73 Conn. 664, 49 Atl. 19, 84 Am. in equity from a forfeiture of his estate for a St. Rep. 182. failure to pay rent is that in equity the landlord's right of re-entry is given as security for the payment of the rent, and on the rent being paid the very thing is done for which the security was given. Although the payment in that case is made after it is due, on interest being paid compensation is made for the delay in performance, and on compensation being made the plaintiff is entitled to relief"-citing English and Massachusetts cases. In its most general form the rule was stated in Mactier v. Osborn, 146 Mass. 402, 15 N. E. 645, 4 Am. St. Rep. 323. It is said: "The result of the authorities, supported by sound principle, is that where there has been a breach of a covenant to pay rent equity will relieve against a forfeiture although the breach was willful on the part of the lessee." See, also, note, 69 L. R. A. 833. We do not know of any case in our reports decided on this rule but besides the references in Swift, supra, the rule seems to be recognized in Morey v. Hoyt, 62 Conn. 552, 26 Atl. 127, 19 L. R. A. 611, and Walker v. Wheeler, 2 Conn. 299. See, also, Hagar, Admr., v. Buck, 44 Vt. 291, 8 Am. Rep. 368; Gorman v. Low, 2 Edw. Ch. (N. Y.) 326; Baxter v. Lansing, 7 Paige (N. Y.) 350; Thropp v. Field, 26 N. J. Eq. 82. [4] It was not until March 25 that the plaintiff became aware of the disappearance of the money in the mails. The plaintiff not believing the money could have been lost assumed liability if it was lost and requested the defendant's attorney to inquire further and if it was really not delivered he would pay again. No disclaimer or objection to this course was made. Nothing further was heard until the notice to quit was served on April 9th, together with information that the money had not been received. Immediately on this notice from defendant's attorney that the money had not turned up, the plaintiff tendered the attorney the rent on April 9 and repeated the tender April 12. On these facts the failure to pay on March 15 was neither willful nor intentional, but was due solely to the theft or loss of the money in the mails. It was the equivalent of the case of robbery referred to in the citation from Spence. The conduct of the plaintiff after he was informed of the nonpayment, though as a matter of law ineffective to make the payment good, is conclusive of the good faith of the plaintiff in sending the money as he did and his continuous desire to avoid a forfeiture which he had been led into making as the result of theft from the mails. In the plaintiff was guilty of no such negligence as should deprive him of his equitable remedy and inflict upon him a loss of $3,000. Lt would be an undeserved hardship under the circumstances to deprive the plaintiff of his option because of the theft of his rent from the United States mails. The action of the court in relieving against this forfeiture was within the well-settled practice of equity and in it we can find no error. It should perhaps here be remarked that the foregoing statement is of the general chancery practice and the action of the court is to be defended as based upon chancery practice unaffected by local statute. In Massachusetts statutes (Rev. Laws, c. 129, § 11) provision is made for payment or tender of the rent after default and at least four days before an action to recover possession. The jurisdiction of the court to grant review of the previous relation of the parties, lief being so well established, the next question is whether the facts present a case which entitles the plaintiff to such relief. We think the facts are strong for the plaintiff. He never intended to give up his lease; he never intended to delay a payment of rent until after the expiration of the days of grace. It had been customary, without objection, to send rent by check or money or der through the mail; the plaintiff sent the cash by the mail on March 13 in ample time by ordinary course of the mail to reach the defendant within the time limited in the lease. The plaintiff made the United States mail his messenger. The reason he sent cash instead of a money order was that, going to the post office in the evening of March 13th, he found a long line of applicants in waiting, and because it was a stormy night and the plaintiff was partially sick and anx-In England (4 Halesbury, 18 Laws of Engious to get home as soon as possible, some four or five miles distant, he placed three bills amounting to $30-the rent due on the 15th-in an envelope, marked with a return card in the corner, and directed to the defendant in the usual way, believing in good faith that this letter would be delivered. The money was lost or stolen while in transit. This, so far as the plaintiff was concerned, was an accident. He naturally presumed the delivery of the money in ordinary course of the mail. 21 R. C. L. 764; Pitts v. Hartford Life & Annuity Co., 66 Conn. 384, 34 Atl. 95, 50 Am. St. Rep. 96; Garland land, p. 544) and in many of our states, statutes provide in various ways for relief from forfeiture in case of nonpayment of rent. Some of these statutory methods are collected in Tiffany on Landlord and Tenant, § 194. In effect they all provide for avoidance in some way and to some extent of forfeiture by payment or tender of rent past due and costs in case the lessor has brought his action. In some cases a bill in equity must be filed and the time for action by the lessee is definitely limited. These statutory provisions are a partial adoption and in some cases the definite extension of the gen eral equitable rule we have stated. They are all a legislative recognition of the justice of the rule as a general proposition. It is not necessary to go into any detail as we have no such statutes, but attention should be called to them as the bases of many de cisions and text-book statements quite unap plicable in this jurisdiction so far as differing from the general equitable doctrine. [5] On April 16, 1920, the defendant prayed out a summary process suit based on the failure to pay rent due March 15, returnable April 23. This action was continued until May 12, 1920, when it was discontinued by the defendant and therefore plays no part in the present controversy. The present action now under discussion was brought in the superior court on April 24, 1920, on the day following the refusal of the defendant to recognize his optional right of purchase. On May 14, 1920, the defendant instituted a second summary process suit against the plaintiff founded on the failure to pay the rent due on or before March 15, 1920, and on this summary process suit the defendant obtained judgment May 22, 1920. The present plaintiff immediately filed a supplemental complaint, and on May 25, 1920, obtained an injunction from this court against the taking of the execution by the present defendant in the summary process suit. This injunction was made permanent in the final judgment in the present case. The defendant claimed that this judgment in summary process operated as a conclusive bar to the maintenance of the present action. This cannot be. The superior court on April 24, and thereafter, had full legal and equitable jurisdiction to determine whether at law or in equity the plaintiff was entitled on April 23, 1920, to exercise his option to purchase. The only jurisdiction of the justice court in summary process was to determine as to the right of possession on account of forfeiture for nonpayment of rent. It makes no difference on equitable grounds whether there had been a technical forfeiture at law or not. The jurisdiction of the superior court was ample, as we have seen, to determine the whole question of whether there was a legal forfeiture, whether, if so, it was sufficient to defeat the plaintiff's purchase option in equity. The court determined that it was not, and that it would relieve the plaintiff from the effects of the forfeiture and would enjoin the defendant from making any use of the judgment in summary process to thwart the effect of this judgment in the equity action; and this it had full power to do under its established equitable jurisdiction. The decision of this court in Gainty v. Russell, 40 Conn. 450, is conclusive: "A court of chancery whose jurisdiction is not disputed, and is first invoked, cannot be ousted of it by a subsequent proceeding in a court of law for the reason that the latter tribunal has also jurisdiction." To the same effect are Downes v. Bristol, 41 Conn. 274; Alden v. Trubee, 44 Conn. 455. There is a minor point we do not wish to be considered as having overlooked. The rule in releasing from a forfeiture for nonpayment at the time requires the payment of what was due with interest. The decree in this case provides for the payment of $60 rent and says nothing of interest. The interest could not, on the most technical view, have been as much as $3, and we do not think for this small sum the case should be sent back even for the correction of the judgment. That amount is too petty, and it further does not appear that the attention of the court was called to the point of interest. Corrections of the finding assigned as error are either not supported by the evidence or inconsequential in their effect, and the grounds of appeal, although quite numerous, are we think sufficiently answered in the decision above reached. 450-On I. Executors and administrators Issue of alleged contract of husband not to claim interest in wife's estate, testatrix purchasing land and giving mortgage held not Independently material. trix's surviving husband to enjoin his exercisIn an executor's proceeding against testaing his statutory right of waiving under the will and taking under the law, testatrix's conduct in making the purchase of land and giving a mortgage held not independently material and provable under the issues involved, either directly or incidentally. 2. Evidence 317(18)-In proceeding where testatrix's husband claimed property, her declarations in his absence held inadmissible as hearsay. Where a surviving husband who had abandoned his wife waived provisions under a will and claimed right to take as if she had died intestate, testatrix's declaration standing alone, made in the absence of her husband, was not competent evidence in favor of the plaintiff administrator, being hearsay. 3. Appeal and error 1050(1)-Admission of testimony held not prejudicial where the same evidence had been admitted without objection. In a suit by plaintiff individually and as executor to enjoin testatrix's surviving husband from waiving under the will and taking under the law, repetition of matter in evidence that testatrix did not mention her husband held not (115 A.) harmful where such evidence had been other-1 $1,700. She subsequently paid this mortgage wise admitted without objection. 4. Executors and administrators debt, and was the owner of the real estate 450-Evi- at the time of her death. dence held not to warrant finding that testatrix and her husband had agreed that neither should have any claim in the property of the other. In an executor's proceeding to enjoin a husband from claiming statutory right in his deceased wife's estate, contrary to an alleged contract, evidence held such that the chancellor was justified in failing to find that the testatrix and her husband had agreed in a separation some years before that neither should make any claim to the property of the other. Appeal from Chancery Court, Washington County; Zed S. Stanton, Chancellor. Bill by Lewis D. Bancroft and another, as executors of Iran C. Vail's will, against W. Eldridge, Vail. Decree dismissing the bill, with costs to defendant, and plaintiffs appeal. Decree affirmed, and cause remanded. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Edward H. Deavitt and Fred L. Laird, both of Montpelier, for appellants. Plumley, Plumley & Campbell, of field, for appellee. On April 19, 1913, the testatrix made her last will and testament, and the same was duly probated November 16, 1914, soon after her decease. The same day of the probate, the defendant, as surviving husband, filed a waiver of the provision made for him in the will, and claimed the right to take estate as is provided in like cases of intestate estates. Lewis D. Bancroft, the plaintiff, is the executor named in the will; also the residuary beneficiary under its provisions. [1, 2] A. W. Ferrin, a witness called by the plaintiff, testified that, at the time when the testatrix purchased the property and gave the mortgage, as mentioned above, he was the treasurer of the Montpelier Savings Bank & Trust Company; that she consulted him with reference to making the pur chase, and he had to do with the writing and the execution of the papers evidencing the entire transaction, including her mortgaging the property to the bank to obtain in part the money with which to pay for it. The plaintiff then offered to show by the North-witness that at the time of that transaction, and in connection therewith, the testatrix told him there was an arrangement between herself and her husband whereby each should have the money and property "which each respectively earned and accumulated to dispose of as each should see fit." The evidence so offered was excluded as incompetent and irrelevant, and exception saved. The same legal question is presented on exception taken to the exclusion of evidence offered in connection with the testimony given by another witness. WATSON, C. J. When this case was here before, the bill, challenged by demurrer, was held insufficient, and the cause remanded, as reported in 91 Vt. 266, 99 Atl. 1014. An amended bill was then filed, answer made, issue joined, the cause heard and facts found by the chancellor. Thereon a decree was rendered dismissing the bill, with costs to the defendant, and on appeal the case is here for review. It was essential to the plaintiff's case, as The conduct of the testatrix in making made by his bill, to show that some years the purchase and giving the mortgage was ago (alleged as in 1886) defendant left, de- not independently material and provable unserted, and abandoned his wife, the testa- der the issues involved, either directly or trix, and that about the same time he prom- incidentally, in the case. Neither was the ised her that he would thereafter make no declaration, standing alone, made by her in claim to her earnings or to any property connection therewith, in the absence of the which she might thereafter accumulate, and husband, competent evidence in the plaintiff's that she might use and dispose of the same favor. It follows that the declaration was as she wished, without hindrance or interfer- but a hearsay assertion and properly excludence from him, if they were not divorced; ed. 3 Wig. Ev. § 1773; State v. Ryder, 80 and that at the same time, and in consider- Vt. 422, 68 Atl. 652; Comstock's Adm'r v. ation thereof, the testatrix promised and Jacobs, 89 Vt. 133, 94 Atl. 497, Ann. Cas. agreed with the defendant that she would 1918A, 465. thereafter make no claim upon him for her support, and would make no claim of any kind upon him, his earnings, or any property which he might thereafter acquire. Later, March 14, 1903, the testatrix purchased a house and lot situate in Montpelier, paying therefor $4,000, and receiving a warranty deed. On the same day she gave to the Montpelier Savings Bank & Trust Company a mortgage, executed by her alone, on the property to secure a note for the sum of [3] Mrs. Lewis D. Bancroft, wife of the plaintiff, was called as a witness by him. It appeared that she was married to the plaintiff in June, 1914, and thereafter saw much of the testatrix while yet in life; and she testified that in none of her talks with the testatrix did the latter make any ref erence to her husband, the defendant; that the testatrix had conversation with the witness respecting the disposition of her property by will. An offer was then made For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to show by the witness that she was informed | understanding that they were not to molest by the testatrix a few days before her death each other, not a word in such respect. The that she intended the plaintiff should have witness further testified in his examination the bulk of her estate, and that she had ap-in chief that he had stated practically all pointed him executor of her will, and that the talk he had with his wife with reference in this conversation the testatrix made no to separation and property and so forth. reference whatever to her husband, the de- which means, if believed, that they had no fendant. Exception was taken to the ex- such talk, for the transcript, which is made clusion of the evidence. The probative force to control, shows none of the nature matericlaimed for the evidence offered lies in the al here or involved in this case. In view of fact that in making such declaration the the foregoing evidence introduced by the testatrix made no reference to her hus- plaintiff, we cannot say that the chancellor band. As stated by the court in its ruling, the witness had already so testified without objection, covering all talks between her and the testatrix. With this fact so in evidence from this witness, its repetition as to the particular time mentioned in the offer could add nothing. was not justified in his failure to find in accordance with the requests under consideration, and the exceptions are without merit. This being decisive of the case, we need not consider the other questions presented. Decree affirmed, and cause remanded. GROW v. WASHBURN. (Supreme Court of Vermont. Oct. 4, 1921.) (95 Vt. 370) (No. 321.) Washington. [4] Plaintiff relies upon exceptions 1, 2, 3, and 5 to the findings of fact, and treats them together in his brief as embracing the same subject-matter. They are there stated comprehensively as being to the failure of the chancellor to find that the defendant and the testatrix, about 1892, agreed that they would each conduct their business independently of the other, and that neither. should make any claim upon the property of the other from that time on. We therefore consider these exceptions as raising the one four-passenger for $1.525, $1,475 due," held An instrument, "Sold to W. one Haynes question thus stated. not to evidence a consummated sale, but mere Sales 461-Instrument held merely memorandum of agreement subsequently con. cluded. 35-Lex loci contractus to be pleaded and proved. The lex loci furnishes in all cases prima facie the rule of decision, and if either party wishes the benefit of a different rule of law, as, for instance, lex domicilii, lex loci contractus, or lex loci rei sitæ, he must allege and prove it. 3. Sales 456-Contract sale, and not lease. held conditional A contract concerning an automobile, providing for payment of certain rent, to go to lessee after certain payments were made, held a conditional sale, and not a lease. The plaintiff called the defendant to testi-ly a writing to be treated as a memorandum fy as a witness in his behalf, and examined of a conditional sale agreement subsequently him at great length on all matters pertain- concluded. ing to, or having any bearing on, the rela- 2. Evidence tions between him and the testatrix during their married life, including their keeping house in the early part of that period, their engaging in business, resulting in his going through insolvency, their working thereafter or engaging in business separately at different places and in different towns, and, during a part of the time, in different states, the extent of their being together and cohabiting as husband and wife, the financial contributions, if any, by each or either to the comforts, wants, or use of the other, the failure of each to visit or have any communication with the other for a long term of years before the wife's death, including the time of her last sickness, and whether there was any talk, agreement, or understanding, between them as to living apart, or a legal separation, or a divorce, or about the wife's property and her disposing of the same by will. The witness testified that there was never any talk between them about a legal separation, or a divorce, nor about her disposing of her property by will, nor about how she intended to dispose of it; nothing of the sort; nor was there ever any trouble between them, nor did she ever complain, or have reason to complain, of his conduct toward her; nor did they have any 4. Sales 479(5)-Demand and refusal to be in positive language. Where automobile was sold under conditional sale contract, and defendant defaulted in his payments, and plaintiff sued in replevin, no formal language was necessary to constitute a demand and refusal, yet the language of the plaintiff must have been such as to amount to a positive, unequivocal demand for possession, and the language or conduct of the defendant must have been such as to amount to a refusal to deliver. 5. Sales 479 (8)-Whether language constituted demand and refusal, when decided by court and jury. Where automobile was sold under conditional contract, and defendant defaulted in in (115 A.) stallments, and plaintiff brought replevin, whether language used by plaintiff was intended on the one hand as a demand for possession, and was so understood on the other, may become a question of fact for the trier; but whether it is sufficient to support an inference of such intention and understanding depends on the reasonable import of the terms used, which is a question for the court, and the same rule applies in determining whether the language or conduct of the defendant constitutes a refusal to deliver. 6. Sales 479(5)—Language used by plaintiff held not proper demand for delivery. Where an automobile was sold under a conditional contract and defendant defaulted in payment, a statement of plaintiff, before bringing replevin, that he must either have payment of the notes or have the car was only the expression of a purpose to make a demand for the car if the notes were not paid, and did not amount to a clear, unequivocal demand for its possession then and there, and was insufficient on which to base the action. 7. Sales 479(5)-Conduct of defendant did not amount to a refusal to deliver. Where automobile was sold under conditional contract, and defendant defaulted in payments, and plaintiff's attorney called on de fendant and stated that he must either have payment of the notes or have the car, mere refusal of defendant to pay the notes, without reference to the car, did not constitute a refusal to surrender possession of it, on which an action in replevin could be based. Exceptions from Washington Court; Stanley C. Wilson, Judge. Action of replevin by Frank Grow against Walter C. Washburn. Judgment for plaintiff, and defendant brings exceptions. versed, and judgment for defendant. Re The defendant was again in Boston, November 15, 1919, and then paid $700 on the purchase price of the car, and executed the instrument under which plaintiff claims title. The instrument, after reciting that the defendant has "this day received and hired of the Langham Motor Car Company" the car in question, and has paid as "rent" $750, provides that he will pay the further sum of $775, evidenced by seven promissory notes of that date, and that, when paid, rent shall cease and the car shall become the property of defendant. The instrument further provides that, if defendant fails to pay said rent, he will, on demand of the company, return said car, etc.; that upon default of any one payment the entire debt shall be due and payable, and such default shall constitute a breach of said lease; that in the event of a breach the company may enter any building upon any land and take possession of and remove said car, etc., without rendering itself liable to refund any sum received by it as rent. After this instrument was executed the car was delivered to the defendant and he drove it to Montpelier. The plaintiff later acquired all right and title of the company to the contract and notes. On July 30, 1920, defendant County owed $700 on his indebtedness to plaintiff, evidenced by the three original notes last to fall due and by renewal notes given in lieu of the other originals, all of which, under the terms of the contract, were overdue., On that day the plaintiff's attorney, Perry, called on defendant at the latter's office in Montpelier, and after some talk about defendant's failure to pay, and his reason therefor, Perry told defendant that he must either have payment of the notes or have the car. Defendant refused to pay the notes, and did not turn the car over to Perry, or tell him where it was. The car was in a local garage at that time. Thereupon Perry caused this writ to be made and served; the car was taken and immediately delivered to him and he took it to Boston. What has since been done with it did not appear. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Fred B. Thomas, of Montpelier, for plain tiff. Fred L. Laird, of Montpelier, for defend ant. SLACK, J. The action is replevin for an automobile which the plaintiff claims the defendunt leased from the Langham Motor Car Company. The case comes here on defendant's exceptions to a judgment for plaintiff on facts found by the court below. The material facts found are these: De fendant, a resident of Montpelier, was in Boston, Massachusetts, November 8, 1919, and there purchased, or opened negotiations that resulted in the purchase of, the automobile in question from the Langham Motor Car Company. At that time the price of the car was agreed upon, the defendant paid $50 on the purchase price, and received a writing which is as follows: [1] Defendant claims that the sale of the car was consummated November 8 and that title thereto then vested in him, so that the instrument in question cannot have the effect of a lease, nor does it constitute a valid lien in plaintiff. While the language of the writing of November 8, standing alone, might support defendant's claim, in view of the fact that the car was not delivered at that time, nor until a further payment of $700 had been made and the instrument in question executed, we think the earlier writing must be |