court held that his so remaining was an election to continue the tenancy. "The question, whether a written instrument is a lease or only an agreement for a lease," said the court, quoting from Kabley v. Gaslight Co.,

ble entry and detainer against the defendant to recover possession of the premises, claiming that the instrument relied upon by him could not be operative as a lease for more than five years, and that it was "void for any longer period because of its uncertainty and for want of notice from the defendant to the plaintiffs of his election to renew the lease for any further fixed time." But it was held by the court that the plaintiffs were estopped by their agreement from maintaining forcible entry and detainer to oust the defendant from the possession which they gave him, so long as he lived up to that agreement and desired to remain; that effect must be given to the written agreement of the parties according to its "tenor and intent"; that the stipulation that he was to have the premises "as much longer as he desires" was part of the consideration for which he took a lease and paid the $50 annual rent for five years; and that the plaintiffs were precluded by the terms of the lease from asserting that "the plaintiff unlawfully refuses to quit the premises, for they have received during the five years of the original term a certain sum annually which the defendant paid in part in consideration of their written promise that he might occupy the premises not only during those five years, but as much longer as he desired, paying the same rent." In support of this conclusion the court cited Horner v. Leeds, 25 N. J. Law, 106; Hurd v. Cushing, 7 Pick. (Mass.) 169; and Cook v. Bisbee, 18 Pick. (Mass.) 527. It is further said in the opinion: "And in Effinger v. Lewis, 32 Pa. 367, the court recognizes the principle that parties may contract for an estate in land by a lease determinable only at the will of the lessee. In the cases which we have quoted, the lease seems to have been under seal; but under our statutes (now chapter 75, § 13) a seal does not seem to be essential to their validity as between the parties to them, provided they are in writing and signed by the maker or his attorney." We are not called upon to determine here what might be necessary to make one effectual against any person except the lessor, his heirs, devisees, and persons having actual notice thereof." Judgment was accordingly ordered for the defend

ant.

In Holley v. Young, 66 Me. 520, the plaintiffs leased the premises to the defendant for

the parties to be collected from the whole instrument." Bacon v. Bowdoin, 22 Pick. (Mass.) 401. The form of expression "we agree to rent or lease" is far from being decisive on this question, and does not necessarily import that a lease is to be given at a future day. So in Kramer v. Cook, 7 Gray (Mass.) 550, the agreement was "to hold for the term of three years, and at the election of the defendant for the further term of two years," and the court said: "The provision in the lease is not a mere covenant of the plaintiff for renewal; no formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease de futuro. * All that is necessary to its validity is the fact of election."

*

In the recent case of Briggs v. Chase, 105 Me. 317, 74 Atl. 796, the defendant was "to hold for the term of one year with the privilege of renewing on the same rental for any term not exceeding ten years," and, after a critical examination of the authorities and full consideration of the question of the intention of the parties as disclosed by the terms of the lease interpreted in the light of all the facts and circumstances, it was held that it was the intent and purpose of the lease to make a demise in præsenti to take effect in futuro at the option of the defendant, and that no written notice was necessary on the part of the defendant to establish his election to continue the tenancy under the lease. It will be noted, however, that the precise question now before the court was not involved in the last-named case of Briggs v. Chase.

But it is contended by the learned counsel for the plaintiff that the great weight of authority in other jurisdictions is opposed to the doctrines laid down by the Maine court in the cases above quoted. It has been seen, however, that the decisions of this court in those cases were not influenced by the mediævalism of the law or controlled by any arbitrary legal dogmas. It was obviously not the purpose of the court to establish any inflexible rules of law, but simply to reach the conclusion that would effectuate the intention of the parties to the several written agreements there under consideration, without violating any established principles of law or considerations of public policy. And this court is still of opinion that a doctrine which enables the court to give effect the language of the written agreement, the circumstances attending it, and the object to be accomplished by it, will be found more consonant with reason and justice than one which compels the court to defeat that intention.

In the case at bar the plaintiff agreed in writing to give the defendant the use and occupation of the premises for $20 a month "during the winter of 1903 and until the beginning of spring, 1904," and after that period he was to pay $25 a month and have the store "as long as he may want it." The language of this agreement is simple and direct and easily understood. The plaintiff could not have failed to understand it in fact, as she was presumed to in law. It is immaterial whether, under the practical construction placed upon the lease by the parties, the "beginning of spring" was understood to be the 1st day of March or the vernal equinox on the 21st of March. It appears that the defendant has continued to occupy the premises since March, 1904, to the present time, and it is not in controversy that rent at $25 a month has been paid from some date in the spring of 1904 to the satisfaction of both parties.

The language of the last clause, stipulating that the defendant may have the store as long as he wants it at $25 a month, reasonably admits of but one meaning and needs no interpretation. In consideration of the preceding term expiring "at the beginning of spring," and the substantial increase of $5 a month thereafter, the defendant was to have the right and privilege, at his option, to have the store as long as he wanted it. The instrument was complete in itself and comprised the stipulations for both terms. No formal renewal by a second written instrument was contemplated by the parties. The agreement operates as a lease in futuro of the additional term. [5] Only the lapse of the preceding term and the election of the defendant were required to render it a lease in præsenti. The defendant's continued occupation of the store at the expiration of the first term and for six years thereafter and the payment of the increased monthly rent affords ample evidence of his election. would be a contradictory interpretation, destructive of the plain and ordinary meaning of words and of the obvious intention of the parties, to hold that the defendant had the option to continue his occupation of the store as long as he wished after the expiration of the first term, and at the same time that the plaintiff had the option to prohibit him from so doing.

It

It is, accordingly, the opinion of the court that the certificate must be:

Judgment for the defendant.

(108 Me. 189) FERGUSON v. NATIONAL SHOEMAKERS. (Supreme Judicial Court of Maine. April 4, 1911.)

1. PLEADING (§ 64*) -DUPLICITY.

A declaration for injury to an employé charged to have resulted from dullness of circular saw teeth, irregularity in the set of the teeth, and failure to instruct, is bad for duplicity; each breach of duty being properly the subject of a separate count.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. § 64.*] 2. PLEADING (§ 18*)-DECLARATION-REQUI

SITES.

A declaration must contain a clear and distinct averment of the facts constituting the cause of action.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 39; Dec. Dig. $ 18.*] 3. PLEADING (§ 64*)-DUPLICITY.

The rule that pleadings must not be double means that the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. § 64.*]

Exceptions from Supreme Judicial Court, Androscoggin County.

Action on the case by William R. Ferguson against the National Shoemakers to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. A special demurrer to the declaration was filed by the defendant, the demurrer was overruled, and the defendant excepted. Exceptions sustained.

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, KING, and BIRD, JJ. McGillicuddy & Morey, for plaintiff. Oakes, Pulsifer & Ludden, for defendant.

WHITEHOUSE, J. This was an action on the case, to recover damages for an injury suffered by the plaintiff while operating a circular saw in the defendant's shoe factory, for the purpose of cutting and splitting boards and shooks into narrow strips.

It is alleged in the declaration that the "saw was operated in the regular and customary way by an experienced person, by fastening a board with a straight edge along the side of the saw as a sort of gauge and at a distance from it equal to the strips to be cut"; that it was "dangerous to press the board against the revolving saw the last eight or ten inches to be cut, for the reason that there were spots or places in the boards where the wood was harder than other places, and when the revolving saw reached these hard

places there was the liability that the board being cut would be thrown up from the saw table with great force and suddenness, and that practically the same result would follow if the board used as a gauge was not properly fastened; and the same result would also follow if the saw had not been proper

ly sharpened and was dull, so that the set of the teeth of the saw was out of order, so as to cause the board being cut to bind against the saw blade."

The alleged failure of duty on the part of the defendant is thus set forth in the declaration: "The plaintiff says that at the time he was set to work upon said saw by said defendant as herein stated said saw was dull and had not been sharpened for a long period of time, although the same had been in use, and that the set of the teeth of said saw was irregular and out of order, so that there was great tendency and liability that the boards being cut and split thereon would bind against the sides of said saw blade and be thrown upward, as above described, all which was also well known by the defendant, but not known by the plaintiff. And the plaintiff says that when he was set to work upon said circular saw, as aforesaid, he had no knowledge or experience whatever in running or operating the same, all which was well known to the said defendant, and that the said defendant nevertheless gave to the plaintiff no instructions as to how to run and operate said saw, and gave him no warning or information as to the dangers, risks, and hazards incident to running and operating the same, to the great carelessness and negligence of said defendant; that the plaintiff in obedience to the orders and directions of said defendant, through its agent, undertook to run and operate said saw to cut and split certain box boards thereon into strips about one inch in width as above stated; that he fastened a straight-edged board for a gauge near the side of the saw blade and adjusted the same the best he knew how; that he attempted to split a strip off a certain board with said saw as ordered by the defendant, and while he was pressing said board against said revolving circular saw with his hands, as hereinbefore stated, and when said saw reached a place in said board a few inches from the end thereof next the plaintiff, suddenly and with great force said board was thrown or jumped upwards from the saw table because of the conditions hereinbefore set forth, which then and there existed, and the plaintiff's left hand was thereby with great force and violence thrown upon said revolving saw; and the plaintiff avers that at the time of receiving said injuries he was himself in the exercise of due care, and that said injuries were in no way caused by any fault or negligence on his part, but solely because of the negligence of said defendant; and the plaintiff further avers that at the time he was set to work upon said saw by the defendant, through its agent, he was a person without experience in running and operating said saw, or any circular saw of any kind, and that he was given no instructions or information as to how to run said saw, nor

incident to the running and operating of said saw, and he did not know the same."

To this declaration a special demurrer was filed and overruled and the case comes to the law court upon exceptions to that ruling. The causes for the demurrer alleged are as follows:

"(1) That plaintiff does not allege wherein the defendant was negligent and thereby caused the injury described in his declaration.

"(2) That plaintiff does not allege any causal connection between any negligence averred and injury received.

"(3) That the plaintiff, alleging two distinct conditions which he claims might cause the accident, namely, that the saw described in the declaration was dull, and that the set of the teeth was irregular and out of order, does not allege which condition actually caused the accident, or that the accident was not caused by his own act, described in his declaration, in fastening a straight-edged board for a gauge near the saw blade.

"(4) That said declaration is double."

[1] It is the opinion of the court that the objection of duplicity in the plaintiff's declaration raised by the demurrer must be sustained. [2] Under the established rules of pleading the plaintiff's declaration must contain a clear and distinct averment of the facts which constitute the cause of action, and set them out with that degree of certainty of which the nature of the matter pleaded reasonably admits, in order that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court that is to give judgment. 1 Chitty on Pl. 256; Bean v. Ayers, 67 Me. 488, 489. As said by the court in Addison v. Railway Co., 48 Mich. 155, 12 N. W. 42, "a declaration for a railway injury is demurrable, if it does not so state the cause of action that the de fendant could, with reasonable certainty, ascertain in what respect it is charged with negligence, or if it does not count specifically upon some particular duty and breach thereof as causing the injury. It is not enough to refer to matters in an uncertain, doubtful, and ambiguous manner, as a kind of general drag to meet whatever evidence may be presented." According to the common-law rule, the plaintiff cannot sustain a single demand by proof of "two or more distinct grounds or matters each of which, independently of the other, amounts to a good cause of action in respect of such demand." 1 Chitty on P1. 249. [3] The meaning of the rule that pleadings must not be double is that "the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported." Stephen on Pl. 251, rule 1; Boardman v. Creighton, 93 Me. 17, 44 Atl. 121. In McGraw v. Paper Co., 97 Me. 343, 54 Atl. 762, complicated machine where it may not be practicable or even possible to allege with certainty the identical defect causing the injury; but even in such cases it may be stated in sufficiently specific terms to indicate to the defendant the charge he is called upon to meet, or the difficulty may be obviated by several counts, with such variations as circumstances may require."

In La Porte v. Cook, 20 R. I. 261, 38 Atl. 700, an action on the case for negligence, the declaration was held bad for duplicity, because it set up "several distinct and independent breaches of duty, viz.: (1) Neglect to furnish proper safeguards for the protection of the plaintiff; (2) neglect to give him suitable instructions; and (3) neglect to provide proper persons to take charge of the work." Each of these allegations, the court said, should be made the subject of a separate count, if the plaintiff desired to rely upon it.

In the case at bar it has been seen that the plaintiff's declaration, consisting of a single count, sets out three distinct and separate breaches of duty on the part of the defendant, any one of which, if proved, would have been sufficient to support a verdict for the plaintiff. It alleges that the "board was thrown or jumped upwards from the saw table because of the conditions hereinbefore

*

*

to

set forth"; and the conditions which had
been "hereinbefore set forth,
the great carelessness and negligence of the
defendant," were (1) dullness of the saw
teeth; (2) irregularity in the set of the saw
teeth; and (3) failure of the defendant to
give the plaintiff necessary instructions how
to operate the saw. Each of these three
breaches of duty thus alleged might require
a specific and distinct answer, and different
evidence to meet it. Each, if proven by the
plaintiff, might constitute a complete cause
of action. Each of them should therefore be
made the subject of a separate count, if the
plaintiff intends to rely upon it. The case
of People's National Bank v. Nickerson, 106
Me. 502, 76 Atl. 937, is clearly distinguish-
able.

The certificate must therefore be:
Exceptions sustained.
Demurrer sustained.

(108 Me. 194)

MAINE FARMER PUB. CO. v. ROWE.

stipulated for in the contract, and will not sustain an action on the contract.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 280.*] 2. CONTRACTS (§ 324*) BREACH-REMEDY.

In such case a subsequent tender of the larger part of the product of the stipulated services, if refused, will not sustain an action for the contract price. The remedy, if any, is an action for the damages sustained by the refusal to accept.

[Ed. Note.-For other cases, see Contracts, Dec. Dig. § 324.*]

Report from Supreme Judicial Court, Kennebec County, at Law.

Action by the Maine Farmer Publishing Company against Sumner Rowe. Assumpsit

on an account annexed to recover the sum

of $486.45 for printing, binding, etc., certain books called a "Municipal History of Waterville." The declaration also contained a count declaring specially upon a written contract between the plaintiff and the de fendant, relating to the same books. Plea, the general issue. At the conclusion of the evidence, the case was reported to the law court for determination. Judgment for defendant.

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, KING, BIRD, and SAVAGE, JJ.

Melvin S. Holway, for plaintiff. F. W. Clair, for defendant.

EMERY, C. J. The evidence shows the following case: Mr. Giveen, having prepared the manuscript for a history of Waterville, began negotiations with the plaintiff's agent, Mr. French, for the printing and binding of the history for him. The plaintiff desired some guaranty or security for the payment for the work, whereupon Giveen arranged with the defendant to make the contract with the plaintiff for the work. The plaintiff accepted the defendant as a responsible party, and they made the following contract:

"Augusta, Maine, July 25, 1908. "Being copy of agreement between Maine Farmer Publishing Company and Mr. Sumner Rowe, Agent.

"It is hereby agreed that said publishing company shall print and deliver to Mr. Sumner Rowe 1,000 copies of a municipal history, specifications as follows: About 240 pages, size 6"x9," set in 10-point solid type, printed on 25x38-60 Antique Book of good quality, and containing 10 halftone

1911.)

(Syllabus by the Court.)

1. CONTRACTS (§ 280*) - CONSTRUCTION-PER

FORMANCE.

When one makes a contract for services to be rendered another, but stipulates in the contract that the product of the services shall be delivered to himself, a delivery to the person for whom the contract was made is not the delivery

ing obtainable at 20c each; proof to be read by Mr. Rowe or Mr. Giveen; books to be delivered within a reasonable period of time and as soon as possible after receiving copy; price on basis of 240 pages to be $390 less 10 per cent. for cash in 30 days from delivery of books. Extra pages of type matter to be figured at $1.25 per page, any decrease