Opinion
10-18-1810
Sutton v. Mandeville
Sutton brought an action against Mandeville for the use and occupation of a house in Alexandria. First count, indebitatus assumpsit for the use and occupation of the house for the space of--years: Second count, in consideration that the plaintiff had, at the special instance and request of the defendant, before that time permitted him to hold and occupy another messuage or dwelling-house of the said plaintiff with the appurtenances, & c. and that the said defendant had, according to that permission, held and occupied the same for a long time, to wit, --years, before then elapsed, the defendant undertook, and to the plaintiff faithfully promised, to pay the plaintiff so much money as he reasonably deserved to have, & c. and avers he deserved other five hundred dollars, & c. On non assumpsit pleaded, the Jury found a verdict for the plaintiff for 500 dollars damages, subject to the opinion of the Court whether it was necessary for the plaintiff in that action to prove an express promise to pay some rent for the house: if such promise be necessary, they find for the defendant. The District Court decided in favour of the defendant; from which judgment the plaintiff appealed.
Judgment reversed.
Judge Tucker. Judge Roane and Fleming were of the same opinion.
OPINION
Thursday, October 25. The Judges pronounced their opinions.
JUDGE TUCKER.
In considering a similar question to the present in the case of Eppes v. Cole, 4 Hen. & M. 161, (except that in that case an express promise that the plaintiff should be paid to his satisfaction was proved,) I had occasion to cite a passage from Wooddeson's lectures, vol. 3, p. 152, in which he says that such an action as this is maintainable, to obtain a recompense for the occupation of the plaintiff's land, by his permission, where there is no stipulation for any precise rent; and adds, that scarce any thing is more usual than such an action of assumpsit for the use and occupation of the plaintiff's house by his permission. I cited also the opinion of Judge Buller, in the case of Birch v. Wright, 1 T. R. 387, in corroboration thereof. He there said, the action may be maintained either upon an express or an implied promise. I beg leave to refer to the case itself for further particulars; and shall conclude with giving it as my opinion, that the judgment of the District Court is erroneous, and ought to be reversed, and judgment rendered for the appellant.
By the whole Court, judgment reversed, and directed to be entered for the appellant, according to verdict.