The first and second instructions requested by the defendant were not pertinent to the issue, and therefore were properly denied. The issue was not whether it was the duty of the defendant to assent to the terms stated by the auctioneer, nor whether his silence at the auction would have estopped him from setting up his rights as tenant, but whether he did expressly assent to those terms, as he might lawfully do. Carrier v. Perley, 24 N.H. 219, 226. *Page 548
The third instruction requested was not correct as matter of law. The effect of the sale was to subrogate the grantees to the rights and remedies which the grantor would have had if the estate had not been conveyed (P. S., c. 246, s. 22), and thereby make the defendant the grantee's tenant; and if the defendant, as a part of the terms of sale, agreed that his tenancy should terminate in four weeks thereafter, it was a waiver of his right to three months' written notice to quit, under the landlord and tenants act. Having voluntarily contributed to the inducements which led to the sale, and the plaintiffs having presumably acted upon such inducements, the defendant became estopped from setting up his tenancy from year to year. "Where one by his words or conduct intentionally causes another to believe in the existence of a certain state of things, and to act on that belief so as to alter his previous position, he shall be concluded from denying their existence, provided such denial will operate to the prejudice of the other party." Davis v. Sanders, 11 N.H. 259, 261; Davis v. Handy,37 N.H. 65, 75; Drew v. Kimball, 43 N.H. 282, 285. And whatever one's real meaning or purpose may be, if he so conduct himself that a reasonable man would take the representation to be true and to be acted upon and it is believed and acted upon, the same principle of estoppel applies. Simons v. Steele, 36 N.H. 73, 79, and authorities cited.
The plaintiffs' damages were properly assessed by the jury in connection with the trial of the issue upon the right of possession. "If a defendant files a plea of title, or appeals, and the plaintiff recovers judgment against him, the court shall cause his damages, exemplary or otherwise, including a just compensation for the use or detention of the property, and for any injury thereto, to be assessed by the jury who try the issue, or otherwise, and may issue execution therefor, or the same may be recovered on the recognizance as before provided." P. S., c. 246, s. 20. The contention of the defendant, that under this statute the jury must first come in and report to the court their finding upon the issue of title, and then, if the finding is for the plaintiff, must return to their room, assess the damages, and report again, has no merit except that of novelty, and, if adopted, would occasion merely useless circuity and delay.
The exception that exemplary damages are not recoverable in this action is settled adversely to the defendant by the statute last cited, and as the instructions upon this branch of the case were not excepted to, it must be presumed they were satisfactory to him. Walker v. Walker, 64 N.H. 55, 57.
Exceptions overruled.
CHASE, J., did not sit: the others concurred. *Page 549