The action was continued for advisernement, and the opinion of the Court was afterwards drawn up by
Emery J.The first enquiry is, whether the witnesses Cush-ing and Lincoln ought to have been admitted. They both had divested themselves of the interest which they once had in the property before June, 1834, and declared they had no interest in the event of the suit. No solid objection remains to their admissibility.
Ought the instructions requested to have been given, and were the instructions which were given to the jury correct. The jury having found that the contract was truly and absolutely made with the proprietors through their committee for the occupancy of the house, as the plaintiff had declared, and that the plaintiff had performed all that he was by their agreement bound to do. And it being proved that before the occupancy was to commence, the property had been so transferred, that Col. Pike had obtained a commanding part in it, and the committee were then disabled to give a lease, and the jury have assessed the damages for the breach of the contract in not permitting the plaintiff to occupy the property, it becomes important to consider whether the Judge erred in refusing the first requested instruction.
Much discussion has arisen in the English Courts, as to what is a lease and what is only an agreement for a lease, because if it be a lease there a stamp of a higher denomination is required. And in Poole v. Bently, 12 East, 167, Lord Ellenborough says, that the rule to be collected from all the cases is, that tbs intention of the parties, as declared by the words of the instrument, must govern the construction. In Woodfall’s Landlord & Tenant, page, 4, 5, it is said, it may be laid down as a rule, that whatever words *58are sufficient to explain the intent of the parties that the one shall divest himself of the possession and the other come in to it for such a determinate term, whether they run in the form of a license, covenant, or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually, as if the most proper and pertinent words had been made use of for that purpose. A license to inhabit a house amounts to a lease.
If one license another to enjoy such a house or land for such a time, it is a lease. It is a certain present interest and ought to be pleaded as a lease. It may be pleaded as a license. If pleaded as a lease for years and traversed, the lessee may give the license in evidence to prove it. These words in an instrument, “be it remembered that A. B. hath let and by these presents doth demise,” &tc. were held to operate as a present demise, although the instrument contained a further covenant for a future lease.
The first instuiction requested, was, that if on the evidence, the jury should be of opinion that the alleged contract declared on was placed in the hands of Stanley, for the purpose of shewing the same to Madge & Jewett, as evidence that he should have a lease of the house, if he would furnish it, as he expected he should be able to do, but not as a completed contract, then they ought to return a verdict for the defendant. It would have been incorrect to give such an instruction, because it was proved, that the contract was made as stated. And the taking of it in writing was for the plaintiff’s security. He might shew it, or might not, without affecting the validity of the contract, which was to be construed by its own terms.
It was requested secondly, that instruction should be given, that if they should be of opinion, that said alleged contract was placed in Stanley's hand as an unfinished contract for the purposes abovenamed, and not to be a complete contract, unless he should give notice to the Directors or Committee, that he would furnish the house, then they ought to find for the defendant.
It was thirdly requested, that instruction should be given, that if they should be of opinion that w hen said alleged contract was placed in said Stanley’s hands, if it was not a completed contract, but was agreed not to be such unless notice should be given to *59the committee in the time and manner above stated, then they ought to find for the defendants.
Substantially, the instructions requested in the second and third place, were given, in requiring the jury to be satisfied that the contract was truly and absolutely made, as the plaintiff had declared, and that the plaintiff had performed all that he was by their agreement bound to do, and directing their enquiry especially to the fact whether or not the time was extended, &c.
The fourth requested instruction was, that it was the duty of Stanley, to present the signed paper to Mudge & Jewett, for the pm pose stated by him to the committee, and according to the condition on which he received it, and then give notice to the defendants within the time agreed on. It could not be material for the court to give a direction, as thus requested, because if Mudge & Jewett, or either of them, or any other person, according to the evidence had confidence in the plaintiff to aid him without seeing the paper, it was totally indifferent to the defendants. The plaintiff could do nothing without advancing the quarter’s rent, which be tendered, and he was at the mercy of the defendants’ judgment, whether he kept a house satisfactory to the committee.
The Court, in cases of this description, will examine the whole evidence with care and adopt the inferences which a jury might properly draw' from it; and if upon the whole case, justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. 1 Peters, 170, 182, M’Lanahan & al. v. Universal Insurance Company.
Upon the evidence, we apprehend substantial justice has been done. And judgment is to be rendered on the verdict.