56 Fla. 202 | Fla. | 1908
In May, 1908, the plaintiff in error commenced unlawful detainer proceedings in the Circuit Court of Columbia County alleging in his declaration that' “J. L. M'arkham, unlawfully and against his consent withholds from him possession of certain real estate known and described as follows: The room on the first floor of the Hotel Blanche building in Lake City, Flor
The case was tried on the 8th of Juñe, 1908. After submission of the evidence the judge instructed the jury to find a verdict for the defendant which was done in the form provided for in section 2166 General Statutes of 1906.
The defendant, Markham, by his attorneys, made the following motion:
“The defendant ‘demurs to the evidence and moves the court to instruct the jury to render a verdict in favor of the defendant, upon the following' grounds: xst. Because the plaintiff has not made out a case that entitles him to a verdict.
2. Because it appears by the evidence' of the plaintiff that the rental contract under which the defendant is-occupying the premises in dispute was a valid contract, and has not yet expired.
3. Because it is shown that if said contract is valid, and the defendant is occupying the premises from- month to month, then the evidence shows that this action was not brought three years from the time the defendant went into the occupancy of said premises. ’
4. Because the plaintiff admits that the defendant was occupying the premises in dispute under a yearly contract, expiring- Feb. 1st, 1908, and that he accepted the rent for the said premises from the defendant for the month of February, 1908, and thereby continued the contract in force for the ensuing year, that is, from Feb. 1st, 1908, until February 1st, 1909.”
The plaintiffs joined issue on the foregoing -motion, called a demurrer to the evidence, and upon consideration the trial judge sustained the same and instructed
“Lake City, Florida, June 8th, 1908.
We the jury find that the defendant did not at the time of the filing of the complaint in this cause wrongfully hold possession of the real estate mentioned in the complaint against the consent of the plaintiff; that the said defendant has not so' held possession thereof, against the consent of the plaintiff within three years next before the filing of said complaint, and that the plaintiff has not the right of possession of the real estate aforesaid. So say we all. W. D. Mizelle, Foreman.”
Judgment was entered for the defendant and the complainant dismissed with costs against the latter. The judgment is here for review on writ of error.
The plaintiff testified in substance that the store room described in the complaint was his property; that he authorized Mr. Calaway to rent it to Mr. Markham, but did not authorize him to do it in writing; that he moved to Lake City in January,' 1907; that Calaway collected the rent until the latter part of 1906, when the First National Bank succeeded Calaway as his agent and collected rent of Markham until he came; that when he moved down to Lake City he went to Col. Boozer’s office to collect what papers he had that Calaway had fixed and had there; that among the lot he found that he ( Cal-away) had made a contract with Markham that witness had not seen before, and that as soon as he saw the contract he went over to Mr. Markham and told him- in person, he (witness) would not abide by that contract; that Calaway had no authority to make a contract of that kind for him, and that he demanded possession of the store; that he and Markham discussed the matter freely and that Markham authorized him to have another contract prepared. Witness then went to Col.
“Lake City, Florida, Miarch 31st, 1908.
Mr. J. L. Markham,
Lake City, Florida,
Dear Sir:
Please take notice that you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described, which you now hold of me as tenant at will, on or before the first day of May, 1908, for the reason that I intend to terminate your tenancy, and to repossess, myself of such premises on the date above mentioned, said premises being described as follows, to-wit: The room on the first floor of the Hotel Blanche building, in Lake City, Florida, that is located just south of the hotel lobby or entrance, said land being in Columbia county, Florida.
D. W. Brown, Landlord and Owner.”
“This indenture, made this 21st day of January, 1905, between D. B. Brown, of Suwannee county, Florida, hereinafter called the lessor, and J. L. Markham, of Lake City, Florida, hereinafter called the lessee, Witnesseth: That the said lessor does hereby lease and demise unto the said lessee the room'on. the first floor of the Hotel Blanche building, in Lake City, Florida, that is located just south of the hotel lobby or entrance. To Have and To Hold the said premises unto- the said lessee, his heirs, executors and administrators, from- the xst day of February, 1905, for the term of one year then next ensuing, with the privilege of continuing said lease
The lessor hereby agrees to furnish all materials for putting in the shelving and counters, and to pay the sum of thirty-five dollars towards paying for the work of constructing same, all of which counters and shelving shall be the property of lessor; Provided, that the lessee shall furnish the materials and have his own counter constructed for. his soda water fountain, known as a dispensing counter, which shall be the property of the lessee, with the privilege of removing same from' building when he vacates same. Lessor agrees to keep said room, in good condition or repair. The said lessee hereby agrees to take said room and pay the rent for same for the period and under the terms herein contained, and to yield up same at end of his term without process of law; to keep the back ground near and around door clean of rubbish and trash; to repair any damage that he may cause to said property while in his possession. Both the parties hereto agree to' all the conditions and terms herein contained.
Signed, sealed and delivered in
our presence. D. E. Knight; D. W. Dawson (seal)
R. T. Boozer. By J. D. Calaway, his agent.
J. L. Markham (seal)”
On cross-examination the plaintiff admitted that he commenced collecting rent of Markham in December, 1907, and, collected three mnoths’ rent at $20.00 per month; that the bank had collected before that time; that Mr. Boozer prepared the contract which he signed as a witness; that he knew about the time Markham went into the building; that Markham discussed the renting
This is substantially all of the plaintiff’s evidence. Then followed the defendant’s motion, which has been referred to, the ruling of the court sustaining it, and directing a verdict for the defendant.
The motion of the defendant is in no sense a demurrer to the evidence. It does not contain the evidence as such a demurrer must necessarily do. See Skinner Manufacturing Co. v. Wright, 51 Fla. 324, 41 South. Rep. 28, and authorities there cited: It is nothing more than a motion for a peremptory verdict.
The fifth, sixth and seventh assignments question the action of the court in sustaining what is called the defendant’s demurrer to the evidence in rendering final judgment for the defendant, and refusing the motion for' a new trial.
We cannot agree with the plaintiff that he did not authorize Mr. Calaway to make a written contract with Markham. He says- he told Markham he would instruct Calaway to' have a contract drawn up. This very clearly implies that Calaway was to make a written contract. Moreover, Mir. Brown, the plaintiff, through his agents, was in possession of this contract from the time it was executed. If he did not read it, that was his own fault. He did actually read it in January, 1907, and collected the monthly rent named in this contract until the first of March, 1908. It is true he says he protested he was not bound by the contract, but he knew Markham- contended he was bound by it, and refused to surrender the store, claiming to hold it under this contract. This looks like a ratification, even though Calaway had no authority to make the contract. 1 Am. & Eng. Ency. Law (2nd ed.) 1198 et seq.; Burkhard v. Mitchell, 16 Colo. 376, 26 Pac. Rep. 657; Reynolds v. Davison, 34 Md. 662. Assuming then that the contract was a binding one, we have next to consider its nature. We do not understand that the defendant in error contends it is more than a lease from year to year at the option of the lessee and terminable at least on his death. It seems to us, however, that the term for which a lease for years is to run
Applying the foregoing principles we think that these words created a lease for one year, with the privilege on the part of the lessee of extending it one more year. Of course, after that time the lessee might hold over, but subject to the provisions of section 4, chapter 5441, laws of 1905, which is as follows: “That when any tenancy shall have been created by an instrument of writing and the term for which such tenancy is limited therein shall have expired and the tenant shall hold over in the possession of said premises without renewing the said lease by some further instrument of writing, then such holding over shall be construed to be a tenáncy at sufferance, and the mere payment or acceptance of rent
We therefore think the court below erred in directing a verdict for the defendant.
Judgment reversed.