78 P. 819 | Kan. | 1904
Lead Opinion
The opinion of the court was delivered by
In January, 1892, Mary G. McCormick, fourteen years of age, lived with her mother upon a tract of ground containing eleven acres, which she owned, having inherited it from her father. In that month her mother was married to William Worrell. From the time of the marriage Worrell and his wife lived upon the land referred to, Mary McCormick living with them. This situation continued until a little after April 30, 1901, when Worrell moved from it, Miss McCormick having written him a letter in effect asking payment of rent for the time he had oc
The principal question presented is whether the evidence in behalf of plaintiff was sufficient to take the case to the jury. The facts shown, so far as necessary to the decision of this question, were substantially as follows : The land was situated about half a mile from the railroad station of Zeandale. It included alfalfa ground, pasture, orchard, and garden. The improvements included an eight-room dwelling-house, a barn, and other outbuildings. The rental value was esti: mated by the witnesses to be from ten dollars to fourteen dollars a month. Plaintiff lived with her mother and stepfather as one of the family during the period in question, except for about eighteen months, during which time she was absent at school and on visits. She paid the taxes, insurance, and cost of painting and other repairs. She paid no board. She occupied exclusively one room. She and her mother did all the housework while she was at home. During several years a nephew of Worrell also formed a part of the family. At one time during plaintiff's minority two rooms were occupied by a Mr. Coons, and rent for them was paid to her guardian. Practically, but not absolutely, all the produce of the place was used there. Some of it was marketed. Upon one occasion
Plaintiff’s claim for rent is not based upon the theory that there was an understanding between her and the defendant’s decedent for its payment — that an implied contract existed that differed from an express contract only in that it required to be proved inferentially by circumstantial evidence instead of directly by positive testimony. She rests her claim upon a gmts'i-contract, or contract implied in law, as distinguished from a contract implied in fact. Her contention is that the law imposed the obligation to pay rent, irrespective of the intentions of her stepfather in the matter. It is said in Keener on Quasi-contracts:
“The term ‘contract implied in law’ is used, however, to denote, not the nature of the evidence by*327 which the claim of the plaintiff is to be established, but the source of the obligation itself. It is a term used to coyer a class of obligations where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstanding the absence of intention on his part, and in many cases in-spite of his actual dissent.” (Page 5. See, also, 15 A. & E. Encycl. of L., 2d ed., 1078.)
It is the contention of the administrator, the plaintiff in error, that the relation of landlord and tenant did not exist, either in virtue of any understanding of the parties, or of an obligation imposed by law ; that the evidence, showing as it does that the plaintiff was a member of the family that occupied the premises, is inconsistent with such a relation. Reliance is placed upon a series of Kansas cases, of which Ayres v. Hull, 5 Kan. 419, is the earliest. It was there said :
“It may be stated, as a general principle of almost universal application, that when one person does work for another, with the knowledge and approbation of that other, the law will imply a promise on the part of the person benefited thereby, to make a reasonable compensation therefor. But, if the relation of the parties is such as to show some other inducement than a pecuniary one for the labor, then the law will not imply a promise to pay for such services. . . . So many considerations, other than those of a mere pecuniary character, enter into the minds of persons closely related in making up the family, that it would be both violent and dangerous to infer a promise from the kindly and sociable acts growing out of such relations. The family relations are too sacred to be invaded and disturbed by presumptions of law that are reasonable and proper when applied to the acts of strangers.” (Pages 421, 424.)
The statute (Gen. Stat. 1901, §3864) provides that “the occupant without special contract, of any lands, shall be liable for the rent to any person entitled
Plaintiff in error cites as a case in point Collyer v. Collyer, 113 N. Y. 442, 21 N. E. 114, where a judgment upon an implied contract for rent was reversed. That the facts were not closely similar to those of the case at bar appears from this language of the opinion :
“The plaintiff gave proof, showing, beyond all question, that she (defendant) did not suspect that she was there as his tenant, under obligation to pay rent, and the circumstances were such that he must have known how she understood it.”
An Indiana case, Tinder v. Davis et al., 88 Ind. 99, is cited as bearing upon the interpretation of the statute above quoted, which was adopted from that state. But the point decided is merely that the statute does not operate to establish a contractual relation between the owner of land who has leased it by express contract to a tenant, and a member of the family of such tenant. In volume 1 of Taylor’s Landlord and Tenant, ninth edition, section 25, it is said:
“Nor will the relation of landlord and tenant be inferred from occupation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other distinct cause.” (See, also, Hardin v. Pulley, 79 Ala. 381; Curtis v. Hollenbeck, 92 Ill. App. 34.)
In the present case the question whether the occupancy of the property is capable of being sufficiently accounted for by the relation of the parties is one of fact to be determined by the jury, depending upon the reasonableness of the supposition, under all the circumstances disclosed by the evidence, that plaintiff intended gratuitously to contribute its use to the support of the family. The case of Chamberlin v
It is'also assigned as error that the trial court permitted the plaintiff to testify that it was always her intention to make some charge and to receive some rent for the property. Her intention was a material matter in the inquiry. If she had never had any intention of exacting, or expectation of receiving, rent she could not have recovered. The objection made to her testimony in this regard runs rather to its credibility than to its competency, and no sufficient ground is shown for its rejection.
The instructions given are complained of, but upon the same general grounds upon which it is urged that the demurrer to the evidence should have been sustained. The court instructed in substance that the plaintiff, in order to recover, must show that Worrell occupied the premises with the consent of the plaintiff ; that there was no agreement as to whether rent should be paid or not; that plaintiff expected to receive rent, and that, in view of the conduct and relations of the parties and the circumstances proved upon the trial, Worrell did not have good reason to believe that he was not to pay rent. In this no error is perceived.
A final assignment of error is based upon the statute
It is also urged that within the reasoning employed in Grisham v. Lee, 61 Kan. 533, 60 Pac. 312, a continuous contract for the hiring of the property should be deemed to have existed, so that the statute would not begin to run against an action for the rent until the occupancy ceased. In the case referred to an employee was permitted to recover for services extending over a period of some six years, upon the theory that the employment was continuous. But there an actual contract was made by the agreement of the parties, no time of payment, however, being fixed, and it was properly left to the jury to say whether it was a continuous one. Here there was no contract but the constructive one resulting from operation of law. It arose not from an agreement to pay rent for such period as the property might thereafter be occupied, but
The judgment-is reversed and a new trial ordered.
Concurrence Opinion
(concurring) : I concur in the reversal, but dissent from the view that a liability for rent was shown, and also that mere occupation of premises implies a promise to pay rent. The plaintiff, her mother and stepfather constituted a family, and together occupied the premises. There was no agreement that rent should be paid, and none was ever claimed or demanded until the family relation was ended. There was no liability to pay rent unless ..the relation of landlord and tenant existed. It did not exist unless it was based upon a mutual intention to form that relation, and there must have been an agreement, either express or implied. It will never be implied where the conduct and relations are inconsistent with its existence. Where the family relation