Opinion
(June Term, 1847.)
1. In an action for use and occupation, where it appeared that one P. had leased the premises to the defendant for the year 1844; that in the latter part of that year he, with the knowledge and consent of the defendant, rented the same to the plaintiff for the year 1845, who leased a part of the same premises to the defendant, who occupied them and held them under the plaintiff: Held, that if this was a case in which attornment was necessary, the defendant had attorned, and at all events was liable to the plaintiff for the rent.
2. Held further, that the defendant having abandoned the premises before the end of the year 1845, and no specific contract being proved as to the time he should enjoy them, and the premises being a wharf and warehouse in a commercial town, it was properly left to the jury to say for what time the parties intended the lease to continue, and the court could not nonsuit the plaintiff because his action was brought before the expiration of the year.
APPEAL from NEW HANOVER Spring Term, 1847; Manly, J.
This is an action for use and occupation of a wharf in the town of Wilmington. The case is, the wharf in question, together with an adjoining lot on which was a warehouse, belonged to one Parsley, who hired them to the defendant for the year 1844. The defendant was engaged in erecting a public building for the United States on a lot adjacent to the wharf, and hired the premises for the convenience of carrying on his work. In the latter part of 1844 Parsley, with the knowledge and consent of the defendant, rented the whole of the premises to the plaintiff for 1845, and the defendant hired from the plaintiff a room in the warehouse, and continued his occupation of the wharf. This occupation continued until the middle of the year, when the defendant abandoned the possession, and, refusing to pay any rent, this action was brought. The recovery of the plaintiff was opposed upon two grounds: First, that the defendant had never attorned to the plaintiff; and, second, that the action would not lie until the end of the year. The case was left to the jury by the presiding judge upon all the facts, stating at the same time it was necessary, in order to find a verdict (214) for the plaintiff, that they should find some act of attornment or some admission of the plaintiff's title. Verdict for the plaintiff, and appeal.
Strange for plaintiff.
No counsel for defendant.
If this be a case in which the doctrine of attornment applies, the statement made by the presiding judge shows that the defendant did attorn. The defendant was in possession of the wharf under the plaintiff. His term under Parsley had expired and he had accepted from the plaintiff a lease for the room in the warehouse.
This is simply a case of subletting, by which the defendant became a tenant under the plaintiff. This was an acknowledgment of his right and, coupled with possession under him, would amount to an attornment.
We do not think the plaintiff's second objection a sound one, applicable to this case. It is true as a general proposition that any occupation of one man's land by another under a contract is, in law, considered a tenancy from year to year, and this from policy and to favor agriculture. In which case the lessor cannot support an action for the rent until the end of the year.
But it does not follow, because the law favors leases from year to year, that the parties may not contract for a shorter period, and, if so, the action can be brought as soon as the time of renting expires; it depends upon the contract of the parties. Here there was no direct evidence of a specific contract, either as to time or rent, and it was a question for the jury to decide, from the circumstances of the case, what the contract was. The wharf was occupied by the defendant, not for the purposes of agriculture, but as a convenience in carrying on his work on the adjacent lot. If the jury believed that it was understood by the parties mutually that the defendant was to occupy it for the whole year or for a short time, as his convenience required, then that was (215) their contract; and if they should believe that the convenience of the defendant required its occupation the whole year, the action was prematurely brought, because he would be entitled to the possession until the end of the year. If, on the other side, the convenience of the defendant required a shorter occupation, and he terminated his possession because he had no further use for it, the term ended, and the plaintiff would be entitled to demand his rent as soon as his occupation ceased. We must suppose that the judge gave an instruction to this effect, or that the defendant did not deem it essential that he should, as no prayer for such instruction or refusal to give it is stated in the defendant's exception. The omission of proper instruction does not constitute error, but its refusal does. Simpson v. Blount, 14 N.C. 34.
PER CURIAM. No error.