131 Va. 347 | Va. | 1921
delivered the opinion of the court.
This is an action of unlawful entry and detainer by B. F. Thompson, executor, and others, to recover from N. D. and Fleet Artrip, doing business under the firm name and style of Lewis Creek Mercantile Company, a certain storehouse and lot in Russell county, Va.
It appears from the record that the plaintiffs secured a
The property leased to the defendants was the property of the plaintiffs. They were represented in the transaction by B. F. Thompson, and no question is raised as to his authority. The lease was a verbal one, and according to the testimony of Thompson was for two years, beginning March 20, 1918, and ending March 20, 1920. The Artrips took possession of the property, paying nine dollars per month rent therefor. The defense sets up a different contract of leasing, alleging further that the property was rented to N. D. Artrip alone. The monthly rent was collected first by Thompson, and later by C. W. Fuller. B. F. Thompson states that some time in March, 1920, prior to the expiration of the two years’ lease, Fleet Artrip, who is described by the witness as' “the man in actual charge of business at the store,”, advised him (Thompson) that “they were not going to buy any more goods, and were going to close out and give the property up. Later, just about the time the lease expired, Fleet Artrip told Thompson that if they would “give them a month or two they would close out their goods, and get off the creek.” Further, that “he tried to sell the goods back to him,” i. e., Thompson.
Proceeding with his testimony, Thompson says: “They paid us the nine dollars a month right on up to July 3, 1920, when we had prepared the notice to them to vacate the property. The possession has been withheld from us
The case of Shenandoah Valley R. Co. v. Miller, 80 Va. 821, is one in which a subcontractor sought to give notice, and perfect a mechanic’s lien pursuant to the statute. His notice did not conform to the statute, and was not served
“Neither was made in the court below; but both are for the first time raised in the appellate court. If the company desired to rely upon them, it should have brought them to the attention of the circuit court; and, not having done so, clearly it is now too late to raise them here. The object of the notice is to apprise the owner of the subcontractor’s claim, and to warn him against making payment to the general contractor. And if the notice be, for any reason, defective, or if it be not perfectly served, it is the undoubted privilege of the owner in a suit or action against him by the contractor to defend on that ground. But these defects, or objections, he may waive as in the present case was done by the defendants in not objecting in the circuit court to the introduction in evidence before the jury of a copy of the written notice served by the plaintiff, with the return thereon; and having thus waived them there, the right to insist upon them now is gone.” 80 Va., p. 826. See also cases cited.
“It is a further principle of appellate procedure that an error to be available on appeal must have occurred without the express or implied consent of the appellant. A party is held on appeal to the position which he assumed below, and is accordingly estopped to allege error in any action of the trial court which he has recognized as valid by his voluntary acts. Accordingly, when the act assigned as error was done by agreement of the parties, it cannot be availed of on appeal to reverse the judgment, although it is erroneous; so where a party fails to object below to a proceeding, he is presumed on appeal to waive contention as to its validity.” 2 Ency. PI. & Pr., p. 516.
The jury having found a verdict for the plaintiffs, that verdict should have been followed by judgment, unless it was contrary to the evidence, or without evidence to support it.
It appears from the opinion of the trial court that it concluded that the “proof showed that the defendants paid rent for, and held possession of, the premises after the two years had expired,” and that “no new conditions have arisen since the original lease, in the case at bar, but the same parties have the title, and the defendants hold the
The first statement of Fleet Artrip, the active manager in charge of the business, was that “they were not going to buy any more goods, and were going to close out, and give the property up.” This,certainly indicated a purpose on the part of the defendants to surrender the premises at the expiration of the lease. A little later and just about the time the two years expired, the same Artrip said to Thompson, that if “we (i. e. the lessors) would give them a month or two, they would close out their goods, and get off the creek, and he tried to sell the goods back to me.” Thompson does not state in terms that he accepted this proposition, but the Artrips continued in possession after this offer on their part, they paying and the plaintiffs receiving nine dollars a month rent.
If it is considered upon this state of facts that a new contract was made, then a “new condition” arose after the original lease, and the rights of the parties thereafter would be determined with reference to the new contract, and not with reference to the original parol lease for two years.
Apparently the monthly rent was treated as due at the
“At any time before the expiration of a lease, the parties may agree as to what shall be the nature of the tenants’ holding over.” Blumerburg v. Myres, 32 Cal. 93, 91 Am. Dec. 560.
“An acceptance of an offer may be by act, as where an offer is made that the offerer will pay, or do something else, if the offeree should do a particular thing. In such a
Acceptance may be inferred from the acts and conduct of the promisee. Colgin v. Henley, 6 Leigh (33 Va.) 85-6, 104-5.
It was competent for the jury, under their well recognized powers, to pass on and determine the credibility of the' witnesses, and to conclude from the evidence of Thompson and the action of the parties that prior to March 20, 1920, the Artrips did submit a proposition which was acceded to by the plaintiffs, and which determined the character of the future holding of the premises in question.
In the instant case this presumption is repelled by evidence of a new contract, to which credence was given by the jury, as shown by their verdict for the plaintiffs.
For the reasons heretofore stated, the judgment complained of will be reversed, and a judgment will be entered, conforming to the verdict of the jury, and awarding the possession of the premises in controversy to the plaintiffs.
Reversed.