#### Annie M. Sadlier, Appellant, *against*Karrick Riggs, Respondent.

(Decided February 3d, 1890.)

Plaintiff sold to defendant certain machinery in a building owned by plaintiff, informing defendant that if the machinery remained in the building after a certain day, defendant would be charged rent for the premises. Defendant did not reply thereto, but allowed the machinery to remain in the premises. *Held,*that the law would imply a promise to pay the rent of the premises.

Appeal from an order of the General Term of the City Court of New York affirming an order of that court setting aside a- verdict and granting a new trial.

The facts are stated in the opinion.

*Thomas C.*Ennever, for appellant.

*Saunders, Webb, & Worcester,*for respondent.

Bischoff, J.

Plaintiff, being the owner of the premises Nos. 66 and 68 John Street, Brooklyn, and of certain machinery therein, on or about February 26th, 1887, sold the machinery to the defendant for the sum of $1,800, the purchase money being then and there paid in exchange for a bill of sale delivered to defendant. Immediately after the sale, one Fogg, acting as plaintiff’s agent, stated to defendant that the machinery sold would have to be removed by the succeeding first day of March, and that unless it be so removed plaintiff would charge defendant with the ren.t of the premises for such time after that date as the machinery might be permitted to remain. Defendant made no reply, and permitted the machinery to remain in the premises for upwards of twelve months from March 1st, 1887. Thereupon plaintiff brought an action in the City Court against defendant to *523recover the sum of $1,500 as the fair and reasonable rent of the premises. At the trial, the learned justice substantially charged the jury that if they found that plaintiff’s agent had, prior to March 1st, informed defendant that, unless the machinery be removed on or before that day, the plaintiff would charge defendant with the rent of the premises thereafter, and that defendant failed to reply thereto and suffered the machinery to remain after March 1st, the law would imply a promise on the part of the defendant to pay such rent, upon which promise he should be held liable. The defendant duly excepted to such charge, and the trial resulted in a verdict in favor of plaintiff for $1,500 and interest. Thereafter defendant moved that the verdict be set aside and a new trial ordered, such motion being based upon the minutes and exceptions taken upon the trial. The motion was granted, and the verdict was accordingly set aside and a new trial ordered, the justice assigning as the ground for such order that his charge above referred to was error. The last mentioned order was affirmed on appeal to the General Term of the City Court, and from the last named determination plaintiff appeals to this court.

The trial justice erred in holding his charge to be erroneous upon the ground stated. The cases cited in his opinion are not decisive of the question here presented. The decisions in *Preston*v. *Hawley*(101 N. Y. 590), and *Hazeltine*v. *Weld*(73 N. Y. 156), were placed upon the ground that at the time of the plaintiff’s proposition defendant had distinctly and in express terms refused to accede thereto. In *Preston*v. Hawley, Chief Justice Ruger says : “ The evidence shows a steady refusal on the part of the defendant to become obligated to pay rent for the premises in question. He expressed his willingness to pay something for storage, but denied his liability for the use and occupation of the premises as a factory.” And in *Hazeltine*v. *Weld,*Judge Allen remarks that: “The referee finds that Weld & Co., when the letter was delivered to them, claimed that they had the right to have the wood remain on storage in the premises until sold by them, at the rate expressed in the receipt of January 24th, *5241871, and did not assent to the increased rate demanded by the plaintiff, but declined'and refused to pay such increased rate, .... and the circumstances not only do not justify, but repel the inference that Weld & Co., assented to pay storage at the rate named in the letter of June 24th, 1872.” Both of these cases were decided upon the theory that the law will never imply that a person promised to do that which in express language and by clear and distinct declaration he refused to do. In the case now under consideration, there is, however, not only a total failure of proof of express dissent on the part of the defendant, but there is also no proof of any circumstances from which defendant’s dissent or refusal to accede to plaintiff’s proposition could be inferred. If it be true that plaintiff’s agent made the statement referred to within the hearing and to the knowledge of the defendant, that he did not reply thereto and permitted the machinery to remain, (and these facts were submitted to the jury) then the only reasonable and logical inference to be deduced therefrom is that the defendant acceded to plaintiff’s proposition, and the law will imply a promise on his part to pay the rent. The proposition of plaintiff’s agent to defendant was, substantially, “ you must remove the machinery by March 1st. Should you, however, desire to have the machinery remain after that date, you may do so, but in that event plaintiff will expect you to pay her the fair and reasonable rent of the premises for the time that the machinery so remains.” It must be conceded that silence alone does not imply assent, but silence under conditions which fairly and in good conscience appeal to the defendant to speak, coupled with passive conduct when it is his duty to act, will have that effect. It is upon this theory that recovery is permitted upon an “ account stated ” *(Lockwood*v. Thorne, 11 N. Y. 170 ; *Avery*v. Leach, 9 Hun 106). Here defendant was informed that the machinery must be removed by the succeeding 1st day of March, and that if he failed to remove it by that time plaintiff would expect him to pay the fair and reasonable rent thereafter. If the time allotted was not sufficient for the removal of the machinery the defendant could have protested, and *525such protest would have negatived any implied promise to pay rent. That he did not so protest must be accepted as proof that he considered the time sufficient. It was his duty to remove the machinery purchased by him within a reasonable time, in the absence of proof that the time within which such removal was to be made had been fixed, and if a time was fixed, as was the case here, it was his duty to remove it within that time. If he knowingly failed to remove the machinery with full knowledge of the plaintiff’s expectations of rent for the use and occupation of the premises after the time fixed for such removal, and without protest or explanation on his part, he must be deemed to have acceded to plaintiff’s terms, and the law will imply a promise to pay such rent.

There is no force in respondent’s contention that the trial justice erred in assuming that the sale of the machinery was to the defendant. The sale was made February 26th, 1887. This is not contested. The bill of sale is only evidence of the transaction, and was originally to the Geneva Manufacturing Company, while the purchase money was paid by defendant personally. Fogg, plaintiff’s agent, says that the first bill of sale was objected to on defendant’s behalf, and that, at the request of Webb, defendant’s attorney, the bill of sale in evidence bearing even date with the first, was executed and delivered in lieu thereof. This is admitted by defendant himself and by Webb. Defendant does not appear to have, been the authorized agent of the Geneva Manufacturing Company, in the purchase of the machinery. The facts conclusively show that he was not, and that he, personally, intended to be, and did in fact become, the purchaser thereof.

The order appealed from should be reversed, with costs.

Bookstaver, J., concurred.

Order reversed, with costs.

A motion for reargument or for leave to appeal to the Court of Appeals, was made at the succeeding General Term, and the following opinion was rendered thereupon April 7th, 1890.

*526Bischoff, J.

Respondent fails to show that some question decisive of the case has been overlooked, or that the decision is inconsistent with some statute or with a controlling decision, and no sufficient ground for re-argument is therefore shown. (See Rule 16, General Term of the Court of Common Pleas). The point relied upon by respondent was fully 'discussed upon the argument of the appeal, and was determined adversely to him.

Respondent is further precluded from urging his exception to so much of the charge of the trial justice as assumed that respondent was the purchaser of the machinery in ques tion, for the reason that he failed to request a submission of that question to the jury. If there is any evidence tending to prove the fact assumed by the trial justice in his instructions to the jury, an exception to such instructions, unaccompanied by a request that the question be submitted to the jury for their determination, is unavailing, and in the absence of such request the party will be deemed to have acquiesced in the instructions. *(Mallory*v. *Tioga R. Co.,*3 Abb. Ct. of App. Dec. 139).

Neither does this case present any such difficult or extraordinary questions of law as would warrant this court to add to the already seriously burdened calendar of the Court of Appeals. The questions determined and referred to in the opinion rendered on the appeal herein, rest wholly in the application of elementary principles of law'to the facts of the case, and respondent has not even attempted to point out any error in such determination. His only contention on this application is that the facts to which the legal principles are applied were not proven ( *Weil*v. *Eckstein,*6 N. Y. St. Rep’r 298; *Taylor*v. *Arnoux,*15 N. Y. St. Rep’r 383; *Spoffard*v. Rowan, 6 N. Y. St. Rep’r 273).

This motion should therefore be wholly denied, with costs.

Bookstaver, J., concurred.

Motion denied, with costs.