Whether a promise to pay rent is to be implied from occupation and other circumstances is a question of fact. A declaration in assumpsit for the rent of a building erected by the plaintiff on land of the defendant's wife, may be amended by the addition of a count in trover for the same shop, the defendant having promised more than six years before the date of the writ to pay the plaintiff rent for it, but having afterwards refused so to do, and having converted the shop to his own use.
BLODGETT, J.
Whether the circumstances attending the occupancy of the shop by the defendant from the fall of 1877 to the commencement of this proceeding were such as to warrant an inference that he was to pay the plaintiff for its use, is a question of fact (Bank v. Getchell, 59 N.H. 281, and Chamberlin v. Donahue, 44 Vt. 57) which we refuse to consider. Fuller v. Bailey, 58 N.H. 71; Lefavor v. Smith, 58 N.H. 125.
The shop was a personal chattel (Dame v. Dame, 38 N.H. 429); and we discover no ground for holding that it "became the property of the defendant, or of his wife, by the plaintiff's neglect to remove it in January, 1875." So far as appears, he was not even asked to remove it.
Nor does the amendment present any difficulty. More than six years before the date of the writ, the defendant promised to pay the plaintiff rent for the shop; but within six years he refused to fulfil his promise, claimed the shop as his property, and converted it to his use. Under these circumstances, the plaintiff was properly allowed to amend his declaration by adding a count in trover (Rutherford v. Whitcher, 60 N.H. 110) alleging a conversion within six years. On that count, and upon competent evidence, the court found the fact of conversion, not before but within the time alleged, and assessed the plaintiff's damages at $300, and for that sum he is entitled to judgment.
Judgment for the plaintiff accordingly.
SMITH, J., did not sit: the others concurred.