5 Or. 423 | Or. | 1875
By the Court,
This is an action in the nature of assumpsit, for the use and occupation of a certain farm owned by plaintiff in her own right.
In order to maintain this action, a contract either express or implied must be shown, creating the relation of landlord and tenant between the parties; and the pleadings' in the case, as well as the instructions, appear to be based upon this theory. It appears, however, that the defendant took exceptions to the instructions on this point. We have examined these instructions, and when considered together as a whole, they are to the effect that, although no express contract may have been entered into between the parties to this action, creating the relation of landlord and tenant, such relation might be implied or inferred from the facts and circumstances surrounding the parties. The objection taken to these instructions, we think, was not well taken, and was properly overruled by the court.
The defendant, by his counsel, asked the court to give the following instruction: “ If the defendant entered as the tenant of another, the real owner (not the tenant’s landlord) cannot maintain assumpsit, but must sue in ejectment and for damages.” The instruction having been refused by the court, the ruling was excepted to by defendant.
By this instruction, the court was asked in effect to instruct the jury, that if defendant went into possession as the tenant of the husband, the plaintiff, although the real owner of the premises leased, could not maintain this form of action, but would be compelled to sue in ejectment and for damages. The instruction is based upon the theory that defendant, having gone into possession of .the premises in question under a lease from the husband, such possession should be treated as hostile and adverse to that of plaintiff, and therefore precludes the existence of any such relation as landlord and tenant. As has already been
The court instructed the jury as follows: “If a party should enter wrongfully into the possession of the lands of another, the owner might waive the tort and maintain assumpsit for the reasonable value of the use and occupation, if the real owner acquiesced in the possession.”
Upon this question there appears to be a conflict of authority; but we do not deem it necessary to pass upon the question in this case. If the instruction does not contain a correct statement of the law, we are unable to see how it could have operated to the injury of defendant. It was a mere statement of a hypothetical case, not applicable to any state of facts developed in the case, and could not have misled the jury.
There being no substantial error in the record, the judgment is affirmed.