Chamberlin v. Donahue, 44 Vt. 57

Chamberlin v. Donahue

44 Vt. 57 | Vt. | 1871

The opinion of the court was delivered by

Ross, J.

To lay the foundation for a recovery in assumpsit, for use and occupation, the relation of landlord and tenant must have existed between the parties, evidenced, by a contract, either expressed or implied. Stacy v. Vt. Central R. R. Co., 32 Vt., 551; Watson v. Brainard et al., 33 Vt., 88 ; Taylor on Landlord and Tenant, § 636. Occupation alone will raise this relation by implication only when the occupancy of the promises has been with the assent of the owner, and without any act or claim, on the part of the occupant, inconsistent with an acknowledgement by the occupant of the owner as his rightful landlord. Taylor on Landlord and Tenant, §§ 636, 637. This implication may be rebutted by proof of a contract, or any other fact inconsistent with the existence of such relation. Stacy v. Vt. Central R. R. Co., 32 Vt., 551; Taylor on Landlord and Tenant, § 636, 637. A contract to purchase, and occupation under it, was held sufficient to rebut the implication of the existence of this relation arising from the occupancy, in Hough v. Birge, 11 Vt., 190. A suit and judgment in ejectment has been held to be conclusive evidence that this relation did not exist during the time mesne profits could be recovered in the ejectment suit. Strong v. Garfield, 10 Vt., 502; Birch v. Wright, 1 T. R., 371. There was no proof tending to *60show an express contract, creating the relation of landlord and tenant, between the parties to this suit; nor do we think that the evidence of the plaintiff so clearly and unmistakably showed an implied contract of this kind, that the court were justified in instructing the jury that the plaintiff was entitled to recover if they found the facts as the plaintiff’s evidence tended to show them to be. The plaintiff’s evidence tended to show the title to the premises, and the right to their use, to have been in the plaintiff, and that the defendant had occupied them. These facts, if established, unexplained, would tend to show that the defendant expected to pay for the use of the premises, since one would not be expected to claim the right to use premises belonging to another without the payment of rent. But the manner in which the defendant entered upon the occupancy of the premises, by his marriage of the daughter of the plaintiff, who was then in the occupancy of the premises with the permission of the plaintiff; the fact that the premises belonged to the wife’s deceased father, and had never been administered upon or set out to the plaintiff; the refusal of the defendant, when called upon, for the plaintiff, by Mr. Hale, to pay rent or leave the premises, or make any contract about their use, and his offer to let the plaintiff occupy them with him and his wife, tended to show that the defendant claimed to occupy them in the right of his wife, under a claim that she had an interest in, and some right to them, by inheritance. The bringing of the suit in ejectment by the plaintiff tended to show that she treated the defendant as holding the premises wrongfully, and not as her tenant, or by her permission. If that suit had resulted in a judgment for the plaintiff, it would have worked an estoppel to the maintenance of this suit. Its failure, through want of notice, relieved it of that effect, but not of a tendency to show that the plaintiff did not regard or treat the defendant as her .tenant, and, therefore, to rebut any implied contract of tenancy between the plaintiff and the defendant. We think the court should have submitted the case to the jury, with proper instructions, to find, from the evidence, whether or not an implied contract of tenancy existed. Judgment of the county court is reversed, and case remanded.