Opinion
No. 4707 Case 132
Argued January 6, 1959
Decided January 30, 1959
1. Where real property formerly owned by the defendant was purchased by the plaintiff at foreclosure sale the continued occupancy of such property by the defendant after such date entitled the plaintiff to recover for the reasonable use and occupation thereof, in the absence of any different agreement, either on the basis of a tenancy at will (RSA 540:1) or under the equitable doctrine of restitution.
2. The fact that a contract for the sale of the property from the plaintiff to the defendant was later entered into during the continued occupancy by the defendant did not as a matter of law under the particular circumstances of the case preclude the plaintiff from recovering a reasonable rental after that date in the absence of evidence of any intent expressed or implied that the defendant who remained in occupancy thereafter and prior to delivery of the deed should pay no rent.
ASSUMPSIT, for the reasonable value of the use and occupation of real estate. Trial by the Court resulting in a verdict for the plaintiff for $3,154.50.
The defendant excepted to the Court's denial of its motion for a nonsuit after the plaintiff's opening statement and the introduction of an agreed statement of facts, and also at the close of the plaintiff's evidence. The defendant also excepted to the verdict as being "erroneous and unwarranted by the law and contrary to the evidence." The defendant does not contend that the amount of the verdict is unreasonable if any verdict may properly be found.
The agreed statement of facts is as follows:
"1. on July 29, 1955 North Riding was in possession of and owner of Timbertop property;
"2. on July 29, 1955 at about 2 P.M., Benedict Ginsberg purchased Timbertop property at foreclosure sale;
"3. on or about August 9, 1955 North Riding was served with notice to vacate premises on or before September 10, 1955;
"4. an eviction action was duly instituted, and on or about October 26, 1955 the eviction action, by agreement of the parties, was marked: `Judgment for the plaintiff with writ of possession to issue thirty days after date, that is, on November 25, 1955';
"5. by exchange of letters (Maurice M. Blodgett, attorney for North Riding, Inc., to Benedict Ginsberg dated December 7, 1955 and Benedict Ginsberg to Maurice M. Blodgett, attorney for North Riding, Inc., dated December 12, 1955) a contract for North Riding, Inc. to purchase Timbertop property from Ginsberg for $37,250 subject to unpaid local taxes was entered into;
"6. that sale to North Riding Inc. in accordance with the terms of the letters mentioned in #5 above, was consummated by warranty deed dated April 18, 1956 and delivered on or about May 28th, 1956.
"7. that North Riding Inc. occupied Timbertop property from July 29, 1955 to May 21, 1956."
In his opening, the plaintiff, in addition to stating the agreed facts, spoke as follows:
"Now, it is the plaintiff's contention that North Riding, Inc., the defendant, had the use and benefit of occupation of the premises from July 29, 1955 to May 21st, 1956; that there is an implied contract, under such a situation, for payment to the owner of the property — Mr. Ginsberg — of the reasonable value of the use and occupation of the premises, and that as a result there is money due Mr. Ginsberg for the reasonable value of this use and occupation. We submit that there was in fact a landlord and tenant relationship between the parties during this period of time, and I believe the Court will find that the law provides that under such a situation the owner is entitled to the reasonable value of the use and occupation."
Further facts appear in the opinion. Transferred by Grant, J.
Goodnow, Arwe Ayer and John M. Reynolds (Mr. Reynolds orally), for the plaintiff.
Maurice M. Blodgett (by brief and orally), for the defendant.
The question before us is whether the defendant corporation, which held possession of the plaintiff's premises from July 29, 1955, when he purchased them at foreclosure sale, to May 21, 1956, without any express agreement as to the payment of rent, is liable for the reasonable value of the use and occupation of the property for this period. Unquestionably, from July 29, 1955, to December 12, 1955, when an agreement to buy and sell was consummated between the parties, the defendant was holding property which, by its own admission, it knew belonged to the plaintiff, and it was deriving the benefit of the use and occupation of it without any agreement that it might do so. RSA 540:1 provides: "Every tenancy or occupancy shall be deemed to be at will, and the rent payable upon demand, unless a different contract is shown." Here no different contract was shown, and in all the circumstances we believe the Court could properly allow recovery of a reasonable amount for this period. Woodbury v. Woodbury, 47 N.H. 11, 22, 23; see Plummer v. Currier, 52 N.H. 287, 296. The Court could also have found "an obligation arising out of the equitable doctrine of restitution" (Sibley Oil Co. v. Stein, 100 N.H. 356, 357) and permitted recovery upon that basis.
As to the period from December 12, 1955, to May 21, 1956, the defendant claims it cannot be liable because its agreement to buy of December 12, which was later performed, concludes the parties and that any right of the plaintiff to recover in trespass or for use and occupation was merged in this agreement and the deeds given pursuant to it.
The interpretation of the letters and deeds presents "a question of intention, which is a question of fact," to be determined in the light of all the circumstances. Barnard v. Insurance Co., 88 N.H. 292, 293. It is to be decided in the first instance by the Trial Court. Newcomb v. Ray, 99 N.H. 463, 465. In none of the correspondence between the parties leading up to and consummating the agreement to buy and sell, nor in the deeds, was the subject of rent mentioned or referred to in any way. The correspondence and the circumstances, however, do show plainly that the defendant, and not the plaintiff, was the one who was anxious that it be allowed to remain on the property. It was running a school there, the plaintiff was paying the insurance on the buildings the defendant occupied, and the defendant had the use of a substantial balance which it was not to pay to the plaintiff until the deeds were passed. Letters written in February, 1956, by the plaintiff to the defendant, requested that the latter pay insurance and taxes, since it was getting the benefit of the property, and upon the defendant's refusal, the plaintiff suggested that he might have his attorney fix the value of the occupancy. The Court was at liberty to interpret this correspondence consistently with an intent of the plaintiff to claim compensation from the defendant, and in any event, in the light of all the facts, it cannot be said that as a matter of law these letters barred the plaintiff from recovery. The weight to be attached to various portions of the correspondence and the resolving of possible contradictions as to the question of intent were for the Trial Court. In all the circumstances, we do not believe the Court was compelled to find, as a matter of law, that the parties intended their contract to terminate the defendant's obligation to pay. In the absence of a finding of such an intent, the defendant would be liable under RSA 540:1 for the reasonable value of its use and occupation of the premises. Furthermore, in reaching its decision the Court could have considered applicable the equitable principles of restitution. Sibley Oil Co. v. Stein, 100 N.H. 356, 357; Restatement of the Law of Restitution, s. 1.
The authorities cited by the defendant, such as Dennett v. Penobscot Fair Ground Co., 57 Me. 425, to establish that one who occupies property under a contract to purchase it and who later completes his agreement, is not liable for use and occupation, are all distinguishable from the present situation. In the Dennett case, while denying recovery to the plaintiff owner, the Court was careful to point out that the facts refuted any "implication" that the vendee was to pay rent. So, too, the question of whether any prior obligations of the defendant here to pay rent were merged in the deeds (57 C.J.S., Merger, pp. 1068, 1069) resolves itself again into one of the intent of the parties to be determined by an examination of the letters and deeds in the light of surrounding facts. Wiseman v. Merrill, 99 N.H. 256, 258. The Court has here found their intent contrary to the contention of the defendants, or rather has failed to find that there was any intent of the parties, expressed or implied in the deeds and correspondence, that the defendant should pay no rent.
While upholding this finding, and the Court's conclusion based upon it, we wish to make it clear that we do not do so in derogation of the general rule that an occupier of premises under contract to purchase, who later completes his agreement, is ordinarily not liable for rent to the owner. In short, our holding is limited to the facts of this case. This appears to dispose of all exceptions of merit and the order is
Judgment on the verdict.
WHEELER, J., did not sit; DUNCAN, J., dissented in part; the others concurred.
I concur in the result reached by so much of the foregoing opinion as would award the plaintiff compensation for use and occupation by the defendant prior to the agreement of December 12, 1955. Woodbury v. Woodbury, 47 N.H. 11, 23, 24. See, I American Law of Property, ss. 3.32, 3.36. However I dissent from the holding that this liability extends to the period after that date, when the defendant continued in possession as purchaser under a contract of purchase and sale containing no provision for the payment of rent, and pursuant to which it had made a down payment of $10,000, of which $3,725 was to be "forfeited as liquidated damages" in the event of default on its part. Williams v. Noiseux, 43 N.H. 388; Parks v. Company, 94 N.H. 454. See Woodbury v. Woodbury, supra, 22; III American Law of Property, s. 11.34. Under these circumstances, RSA 540:1 can have no application. Williams v. Noiseux, supra.