15 W. Va. 657 | W. Va. | 1879
delivered the opinion of the Court:
This cause is presented upon a supersedeas to the judgment of the municipal court of Wheeling, rendered on the 19th day of December, 1877, in an action in assump-sit for use and occupation by the defendants of a certain messuage and premises, with the appurtenances belonging to the plaintiff. The case was submitted to a jury, which found a verdict for the plaintiff, and assessed his damages at $254.28. Defendants moved the court to set aside the verdict and grant them a new trial, which motion the court overruled, and rendered a judgment for the plaintiff for the $254.28 damages, with interest thereon from December 19, 1877, until paid, and costs.
Upon the trial of the cause, the plaintiff offered in evidence, which the court permitted to be read against the objection made by defendant’s counsel, a written lease, not under seal, made between the plaintiff and the de
Whatever may have been the practice in Virginia, prior to the revisal of 1849, as to the proper action in such a case as is presented by this record, it is not material to question now. Section 7 of chapter 93, Code of West Virginia, is a rescript of the statute adopted in Virginia under the revisal of 1849, and isas follows: “ Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover (where the agreement is not by deed) a reasonable satisfaction for the use and occupation of lands; on the trial of which action, if any parol demise, or any agreement, (not being by deed), whereon a certain rent was reserved, shall appear in evidence, the plaintiff shall not therefore be non-suited, but may use the same as evidence of the amount of his debt or damages. In any action for rent, or for such use and occupation, interest shall be allowed as on other contracts.” By this section we have adopted substantially statute 11 George II, ch. 19 §14; omitting after the word “ action ” the words “ on the case,” and substituting after the word “non-suited,” the language, “ but may use the same as evidence of the amount of his debt or damages,” in lieu of the language, “ but may make use thereof as evidence of the quantum of the damages to be recovered.” I infer from a note to the report of the revisors of the Virginia Code, page 704, that this change in our statute from that of 11 George II, ch. 19, §14,
Mr. Starkie in his work on Evidence, sixth American ed., p. 853, says: “The action of assumpsit for use and occupation depends on the statute, 11 Geo.II, ch. 19, §14.” Mr. Espinasse, in 1 Nisi Prius 20, says the action of assumpsit for use and occupation was given by statute 11 George II, ch. 19. Judge Tucker, in Eppes’s ex’rs v. Cole et ux., 4 H. & M. 168, says: “The action for use and occupation was not given by the statute of George II, it had been used at least from the time of James I, as the case of Dartnal v. Morgan, Cro. Jac. 598, clearly proves; and the case of How v. Norton, 1 Lev. 179, shows it was in use in the time of his so.n Charles II; and a variety of other cases might be sho'wn to prove the same
The terms of the Virginia statute are restricted to no particular action, (1 Lomax’s Dig., 2d ed., top page 717). “Though the form ot action is not designated by the statute, those in most general use are debt and assumpsit; both of which existed at common law.” (Barton’s Prac. 51). And that our statute contemplated both debt and assumpsit for use and occupation, may be fairly inferred by its permitting the plaintiff to use “any agreement (not being by deed) wherein a certain rent was reserved,” “as evidence of the amount of his debt or damages.” I think,
Upon the trial of the case, the plaintiff offered in evidence the written agreement or contract for the leasing of said premises by said plaintiff to the defendants, made and signed by them respectively, November 2, 1875. The defendants objected to its being read in evidence, but the court, after the execution thereof and the signatures thereto had been proved, admitted it in evidence; to which ruling the defendants excepted' “as also to the proof of the execution thereof.” • The court did not err in permitting the plaintiff to introduce the agreement in evN
It is urged that “the defendants, Martin Linden and Louis Both, are proved never to have had use or occupa
From these general rules and principles, sustained by the other authorities cited by the plaintiff’s counsel, it is plain that the court did not err in admitting the agreement in evidence. The agreement shows that the plaintiff leased the premises to the four defendants jointly! and whether Linden, Sr., and Roth did, or did not, have actual possession, the “lease” shows that they were co-tenants with Steward and Linden, Jr., and lessees of the premises, for a certain value, of the plaintiff, and being co-tenants of Steward and Linden, Jr., who are proven to have had actual occupancy of the demised premises under the agreement, the occupancy of Steward and Linden, Jr., must be considered the occupancy of all the joint lessees ; and by the terms of the lease they are responsible to the
Other pertinent cases were cited by the learned counsel, bearing upon the principles in this case, but I deem it unnecessary to make .further reference, as I consider the principle settled, that where two of four joint lessees, enter upon and occupy certain premises, under a written agreement made with the owner of the premises, and signed by all of them, and make the entry at the time designated in the agreement for the commencement of the occupancy, and the other two do not make the actual entry upon and occupy the premises, that the occupancy of the first two was the occupancy of all four, and upon the terms designated in the agreement; and all four are lessees to the landlord, whatever might be their relations inter se, and as such lessees, they are responsible to the landlord in an action for use and occupation.
It was also urged that the court erred in giving to the jury a certain instruction purporting to be set out in a bill of exceptions, but as it is not properly authenticated
The judgment should be affirmed with costs and damages according to law.
JudgmeNT Affirmed.