47 Tenn. 623 | Tenn. | 1868
delivered the opinion of tbe Court.
This suit was brought for the use and occupation of two store houses in the city of Nashville, for the year 1862. The declaration is in the usual form. The defendants plead: First, a general denial of the debt; second, the defendant, McCrory, plead specially, that he rented from plaintiff the two store houses, for the year 1862, at the rate of $1,500 per annum for both; that he sub-let one of them to defendant, Armstrong, for $1,500; that the said Armstrong agreed to execute his note, payable quarterly, with security; that shortly after the renting, and befpre the execution of these notes, the plaintiff went to said Armstrong, and directed him not to execute his notes to the defendant, McCrory; that he was the owner of the property, and that defendant, McCrory, had no right to sub-let; thereby he failed to get the notes of the said Armstrong, and that he has become insolvent, and that he has sustained damages to the amount of the rent agreed to be paid. Replication and issue was taken on the several pleas. The jury, upon the evidence adduced and the charge of the Court, found the issue in favor of defendant, McCrory, and against the defendant, Armstrong, for $1,094.67, and against K. J. Morris and
The plaintiff moved the Court for a new trial; and in support of the motion, read his affidavit, and the affidavit of T. B. Harris. The motion was overruled, and judgment rendered in accordance with the verdict; to which the plaintiffs excepted, and appealed in error to this Court. •
The facts necessary to be stated are as follows: The plaintiff, in 1861, rented the two store houses to one Joseph Swan, for §2,400, for that year,' and this suit was brought against him for the use and occupation of the same. He has since died, and Morris'and Harrison have qualified as his executors. About the time of the expiration of the renting, the plaintiff, who resided in Sumner county, came to Nashville, and tried to get Swan to deliver to him the possession of the - houses, stating to him that he had rented them for the year 1862 to Gilke-son & Co. Swan did not deliver the possession, but informed the plaintiff that they could move in; that he would not be in their way. He was told that they would not move in unless he would move out. Several applications were made to the plaintiff to get the possession, with like results. Swan continued to occupy one of the houses until the spring of 1862, as a store house. In the winter or spring of 1862, the roof of the house occupied by McCrory fell in, and he removed his desk to the house which Swan occupied. The store house was occupied by the defendant, Armstrong, for the year 1862. There is no proof in the record to show any occupation by Mc-Crory for the year 1862, except he kept his desk in the
The Court charged the jury, in substance: If the defendants, or either of them, leased the store houses, as alleged in the declaration, under a special contract, he or they would be liable according to the terms of the contract; that if the defendants*, or either of them, went into the possession, with the acquiescence of the 'plaintiff, and used and occupied the houses, they would be liable, if there was no special contract with either defendant. But if Swan had rented for 1861, at which time his renting expired, and he failed to give possession, and held over by permission of the plaintiff; or if he stated to plaintiff that his tenants could move in at any time, yet Swan remained there in one or .both of the houses a short time, or used and occupied the same without contract, Swan would be bound for reasonable rent; and if, while he so occupied one or both of the houses, the defendant, Armstrong, moved in and occupied one or both of said houses, for the year 1862, he (Armstrong) would be liable for a reasonable rent for the year, or for the time he used and occupied the same.
The plaintiff's counsel requested' the Court to charge the jury, that if the plea of the defendant, McCrory, shows a contract for the renting of the houses for 1862, the replication admits that this being so, no other proof is necessary to prove the contract. These instructions were refused by the Court. The Court instructed the jury, the plea of non assumpsit being in, throws the onus of proof on the plaintiff.
That part of his Honor’s charge to which exception
Where the letting is from year to year*, or for a year, if the tenant holds over, the landlord may elect to treat him as a tenant from year to year; or where the renting is for a shorter period, and he holds 'over, he will be deemed to hold upon the terms upon which he entered, and the landlord is entitled to recover the value of the rent, as fixed by the terms of the original contract upon which the lease was made. It is the duty of the tenant, at the expiration of his term of leasing, to restore the possession to the landlord. He cannot impose terms on him, as to the possession of the property. To avoid the liability the law throws upon him, he must surrender the possession. If he refuses to quit, the landlord will not be justified in resorting to force to put him out. He may either resort to his legal remedy to get the possession, or treat him as a tenant. The tenant must, at the expiration of the term, give the landlord the complete possession of the property; and unless this is done, the tenant’s responsibility for rent will not cease, and he will be deemed to hold upon the terms upon -which he entered into possession: Sheppard & Mitchell vs. Cummins, 1 Cold., 353; Taylor’s Landlord and Tenant, 382, 475.
It is insisted the Court erred in refusing the instruction .asked for; that the plea is evidence in the admis
It is insisted the Court erred in overruling the motion for a new trial as to the defendant, McCroiy. This ap
The judgment against Morris and Harrison, executors .of Swan, will be reversed and remanded, and a new trial awarded. As to the other defendants, it will be affirmed.