160 S.E. 364 | N.C. | 1931
Summary proceeding in ejectment instituted by W. H. Austin, agent, against L. George and John McCall, trading as City Market.
Summons was issued by a justice of the peace on an affidavit of the plaintiff, setting forth a cause of action under C. S., 2365, also claiming rent in arrear to the amount of $174.65, as authorized by C. S., 2367. On the hearing, the justice of the peace gave judgment that the defendants be removed from, and the plaintiff be put in possession of, the demised premises (C. S., 2369), and that the plaintiff recover of the defendants the sum of $187.50 with interest and costs.
On appeal by the defendants, the case was tried de novo in the Superior Court on the issue of indebtedness alone, resulting in the following verdict:
"What amount, if any, are the defendants indebted to the plaintiff? Answer: $174.65 and interest."
Judgment on the verdict for plaintiff, from which the defendant, L. George, appeals, assigning errors.
The issue of tenancy and holding over was disposed of by the justice of the peace. Perry v. Perry,
The record shows that in April, 1929, plaintiff's agent, G. T. Powell, rented the store in question to L. George at a rental of $75.00 per month, but for no special length of time. Three or four months thereafter the defendant George saw the said Powell and told him that he had paid the rent on the building for the first month and one-half, but that he no longer had any interest in the "City Market," an alleged partnership. The defendant, John McCall, continued to pay rent on the building up to 1 January, 1930. The trial court held that the notice given by George to Powell was not sufficient to relieve him from liability for subsequently accruing rent. In this, we think, there is error. Furniture Co., v. Bussell,
The appealing defendant is entitled to have the matter submitted to another jury.
New trial.
