The second exception proceeds upon the ground that it was not competent to establish a usage and custom in the city of Washington for tenants to make such removals of buildings during their term. We can perceive no objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies. Every person under such circumstances is supposed to be conusant of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books; as, for instance, to prove the right of a tenant to an away-going crop. 2 Starkie on Evidence, part IV., 453. In the very class of cases now before the court the custom of the country has been admitted to decide the right of the tenant to remove fixtures. Woodfall's Landlord and Tenant, 218. The case before Lord Chief Justice Treby turned upon that point. Buller's Nisi Prius, 34.

The third exception turns upon the consideration whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant that it was admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration; open, indeed, to such commentary and observation as the court might think proper in its discretion to lay before them for their aid and guidance. We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect upon their judgment; but in a legal sense it was within their own province to weigh it as proof of a usage.

The last exception professes to call upon the court to institute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and for the usage. It requires from the court a decision upon its relative weight and credibility, which the court were not justified in giving to the jury in the shape of a positive instruction.

Upon the whole, in our judgment, there is no error in the judgment of the Circuit Court, and it is affirmed.1

1For a class of cases in which tenant cannot remove trade fixtures, see O'Brien v. Kusterer, supra, p. 237. - ED.

Linahan V. Barr

41 Connecticut, 471. - 1874.

Carpenter, J. - The sole question in the first case is, whether a tenant who erected a building on leased property had a right to remove the same at the termination of his lease. The circumstances were these: - The premises consisted of a store in the city of Bridgeport. The store burned down, leaving a vacant lot. The lease had then about two years to run. The landlord offered the tenant fifty dollars to surrender his lease, but he declined, saying that he was about to erect another building on the land, that he knew that it would belong to the landlord, that he did not intend to remove the same at the expiration of his lease, and that the rent which he should receive during the term would pay the cost of construction. The building was one-story high, built of brick, with glass front, and stood on the foundation walls of the burned building, except the rear, which was an unbroken brick wall from the cellar bottom.

The respondent claims under the lessee, and insists that the building was a trade fixture which might lawfully be removed by the tenant.

A question is made whether the declarations of the tenant were admissible in evidence. We entertain no doubt on that question. They tend directly to show the intention of the party in erecting the building; and intention in these cases is always a material inquiry. Had the parties agreed that the tenant might build and remove the building, no one would doubt that that fact might be shown for the purpose of proving that it was the personal property of the builder. The intention and understanding of the parties at the time are necessarily involved in the inquiry.

In this case it is apparent that both parties intended that the building, at the termination of the lease should belong to the owner of the land. This is evident, in the first place, from the materials used, and the manner of construction. It was attached to the freehold in the same manner that buildings ordinarily are which are designed to be permanent. This, although not conclusive, is an important consideration. In the next place, the interview between the parties at the time very clearly shows that neither party expected or intended that the building should be removed. In view of all the circumstances we think the court below was clearly right in holding that the building was a part of the realty. Ombony v. Jones, 19 N. Y. 234; Shepard v. Spalding, 4 Met. 416; Curtis v. Hoyt, 19 Conn. 154; Landon v. Piatt, 34 Conn. 517; Capen v. Peckham, 35 Conn. 88.

The second case was a summary process to recover the possession of the leased premises. The only question before the justice seems to have been whether the plaintiff in error, who claimed the building by purchase from the original lessee, was the lessee of the complainant. The court found that he was, and rendered judgment against him.

We fail to discover any question of law in the case which this court can review.

The defendant claimed that the occupation of the premises while he was claiming the ownership of the building, and while the injunction against his removal of it was in force, was not an acceptance of a proposition by the plaintiff to lease the premises to him at a certain rent named. The justice found that he had become a lessee of the premises, that is, that his conduct was such an acceptance.

This was a question of fact. But even if it can be regarded as a mixed question of law and fact, we cannot see that the justice violated any principle of law in deciding as he did.