5 Daly 460 | New York Court of Common Pleas | 1874
I do not think that we would be justified in disturbing this judgment upon the assumption that the plaintiffs were entitled to recover anything. There is conflict upon the material point, whether Rhodes was or was not informed by the plaintiffs of their special arrangement with Zahn, when the agreement was made between Rhodes, Zahn and West for the extinguishment of Rhodes’ indebtedness for rent to the defendant, upon Rhodes’ agreement that the rent due to him by Zahn, might be paid by Zahn to the defendant. Rhodes, when finally called, testified that he thought that Forbes may have said something about such an arrangement after Zahn had been in occupation of the premises six or seven months and “ just before he left.” He explicitly denied that he had any previous knowledge of it, and so far as this question of fact was involved, it was a question for the judge, who must be assumed to have found upon the point in favor of the defendant.
Assuming then that Rhodes knew nothing of the special arrangement existing between Zahn and the plaintiffs, these facts appear : That Zahn hired a certain part of the premises occupied by Rhodes, as a place for carrying on the sale of the
Here the agent, empowered by the plaintiffs’ own admission to receive consignments of their portable forges for sale in this city, and to transact all their business here, represented when he hired the premises that they would be responsible for the rent; that their goods were to be consigned to him, and that he was to act as their sole or general agent in this city. Rhodes let the premises upon this representation, believing it to be true, and what subsequently took place, before the defendant accepted a forge in payment of the rent assumed to be due by the plaintiffs to Rhodes, and the rent due by Rhodes to the defendant, was of a character to confirm both Rhodes and the defendant, in the belief of the truth of what Zahn said, such as the consignment by the plaintiffs of a large quantity of forges • the putting up of their name over the door ; the payment by them of the first two quarters’ rent; their statement that all the business in New York was to be transacted through Zahn, their only agent in New York; and the fact that Forbes, one of the principals, came frequently to the place of business,'and neces
But I do not see how, upon the evidence, the recovery of the $100 upon an implied contract for use and occupation, can be sustained. .The premises hired by Zahn consisted of a part of the defendant’s store, and as it was occasionally insufficient to hold all the forges that came, he was in the habit at times of extending them over that part of the store occupied by the defendant. If the defendant had recognized his or the company’s right to do so, there might be sufficient to imply a contract for use and occupation of this additional space in the defendant’s store. To warrant an implied contract, however, for use and occupation, the relation of landlord and tenant must exist, and as incident to that relation, the right, indicated by the landlord’s acquiescence, of the tenant to occupy for the period for which rent is claimed (Taylor on Landlord and Tenant, §§ 173, 636, 642, and cases there cited; Bancroft v. Wardwell, 13 Johns. 489). This was not the case here. There is nothing to show that the defendant as landlord recognized Zahn’s or the company’s right to place their forges over the part of the store which he occupied. It is in evidence that nothing was said
Loew and J. F. Daly, JJ., concurred.
Ordered accordingly.