32 Kan. 396 | Kan. | 1884
The opinion of the court was delivered by
It is claimed by Snedaker (the plaintiff in error) that the agreement between Burnham and Powell discloses the fact that Powell was employed as Burnham’s servant, and as a part consideration for his services was allowed to occupy a portion of his employer’s house; and thereon it is further claimed that the relation of landlord and tenant between Burn-ham and Powell uever existed; that the relation which did exist was that of master and servant; therefore, as no relation of landlord and tenant existed between Burnham and Powell, no such
The facts in this case, however, do not justify the conclusion of Snedaker, plaintiff in error. Powell demanded payment for two months’ rent from September 13, 1883, to November 13, 1883, at $5 per month, amounting to $10; and also demanded judgment for two months’ rent from November 13, 1883, to January 13,1884, at $8 per month, amounting to $16. The district court rendered judgment for $16 only. We may therefore assume that the judgment was rendered for the rent from November 13, 1883, to January 13,1884. Powell had the right to occupy the house of Burnham to Mai’ch 1, 1884, free of charge. Pie was to work for eight months from March 6, 1883. This time expired prior to November 13, 1883. After he moved away, and perhaps quit work, the house belonging to Burnham was not an accessory or aid to the performance of Powell’s duties as a servant. Under the contract Powell had paid by his labor and services for the use of the house to March 1, 1884; and even if the occupancy of the dwelling during .his eight months’ service was that of a servant and not as a tenant, yet after he had performed that service, the relation existing between Burnham and Powell was that of landlord and tenant. In order for a person to occupy as a servant, the occupancy must in some way be in aid of or necessary to the performance of service.
“ The mere fact that the relation of master and servant exists, and that the servant occupies one of the master’s rooms without paying rent therefor as a part of his compensation, is not of itself sufficient to establish a holding as a servant, but the occupancy must also be subsidiary and necessary to the service. It must be dependent upon and necessarily connected with the service, for if it is independent, or unconnected with the service and not in aid thereof, although the house belongs to the master and no rent is paid therefor; or even though the
There is no evidence showing or tending to show that after November 13, 1883, the occupancy of the house was for the benefit of Burnham, or as an accessory or aid to the performance of the duties of Powell as a servant. Eor aught that appears, after the eight months had expired, there was no' service to be performed by Powell, and yet Powell was entitled to the house for nearly four months thereafter. If the services of Powell had expired, clearly Burnham had no right to enter forcibly and oust him of the possession of the house, for he had expressly agreed with Powell that the latter should have the house until March 1, 1884, although his services as a servant might expire November 6, 1888. As Burnham permitted Powell to transfer his interest or sub-let the house to Snedaker, the latter held under Powell and -not under Burn-ham. Snedaker was therefore liable for the rent which it was adjudged he must pay.
The judgment of the district court will be affirmed.
