Plaintiff, an attorney at law, sued the defendant, another attorney at law, for rent due for use of plaintiffs law office and for attorney fees and interest. Plaintiff contended there was an express agreement between him and defendant for payment of a sum certain as rental. Defendant admitted plaintiffs ownership and that he occupied the premises, but he contended that he was to "assist” plaintiff in his practice in return for free rent, and he denied any agreement to pay rent, and denied being indebted to plaintiff for any sum or rent.
The lower court denied all claims for rent more than four years old, and the case was then tried before a jury. Plaintiffs motion for directed verdict was denied. The jury returned a verdict in favor of the defendant, upon which judgment was entered, and plaintiff appeals. Held:
1. Testimony relating to other evidence before the jury, which tends to illustrate, or explain the issue, or aid in arriving at the truth, is properly admitted, although it may appear to be irrelevant when considered alone.
Walker & Chapman v. Mitchell & Co.,
2. Plaintiff contends the court erred in refusing to charge the jury that the burden was on defendant to show a defense to plaintiffs claim, and contends that he requested in writing that the court so charge. But the plaintiff had the burden of proof (see
Perper v. Marks,
3. Plaintiff contends the court should have charged Code § 61-103. One of his written requests asked that certain Code sections be charged. He seems to contend that the trial court should have charged that "where title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied ...” But he only requested that Code § 61-103, and certain other Code sections by number only, be charged. That is all the court would have been required to charge, assuming it was otherwise proper to so charge. To have instructed the jury that, "Code § 61-103 applies in this case” would have been completely unintelligible to them. This request was not in proper form.
Next, even if the desired language had been written out in the request, it would have been erroneous to charge it. The plaintiff relied on an
express
contract, and not on an
implied
contract.
*760
Plaintiff testified that defendant
expressly agreedto
pay $150 per month as rent, which was later increased to $200 per month. (Tr. pp. 105, 139, 166, 176-197, 204-212; PL Ex. 4, Tr. pp. 533-642). Thus, having elected to rely on an
express
contract, he is not entitled to rely on and have the court charge on
implied
contract. Under the doctrine of election of positions and election of remedies, plaintiff was required to decide on his course and hold to it, and not "swim hither and thither in a sea of legal uncertainty until he has been transfixed by the harpoon of a final judgment.
" Board of Ed. of Glynn County v. Day,
Of course, it is the law of this state, as is held in the cases hereafter cited, that where
no amount of rent
is agreed upon the law will
imply
an undertaking to pay such rent as would be fair and reasonable.
New v. Quinn,
It has likewise been held that one is estopped to recover on quantum meruit where there exists an express agreement.
Alford v. Davis,
4. The court did not err in submitting to the jury defendant’s defense that no rent was due because plaintiff had accepted defendant’s services in lieu of rent.
5. If a landlord permits one to occupy premises free, an obligation would arise to pay rent once the landlord notifies tenant that the rent free arrangement had terminated.
Childrey v. Brantley,
6. Plaintiff sued for rent due for a seven year period. The court ruled that the statute of limitation barred any claim for any period beyond four years. In this ruling he was correct. See Code § 3-706. But plaintiff insists that defendant promised to eventually pay all rent, and that this would authorize the suit for the entire seven year period. Code §§ 3-901 and 20-401 (6) require such a renewal of the debt to be in writing. There was no written agreement to revive the barred debt, and there is no exception thereto in Code § 20-402. The court did not err in restricting the finding of the jury to the last four years.
7. The jury found for the defendant, and that no sums were due. Accordingly, plaintiff was not entitled to attorney fees, for he had to recover other elements of damage before he could recover attorney fees.
Bigelow-Sanford Carpet Co. v. Goodroe,
8. The trial court did not err in excluding defendant’s income tax returns by which plaintiff sought to show he had not listed his *762 "free rent” as an item of income. This would have shed no light on the issue as to whether defendant owed plaintiff any rental, and was not relevant.
9. Plaintiff enumerated error because the court failed to charge "his written Requests to Charge.” The first written request was for the court to charge six different sections of the Annotated Code. He argued only Code § 61-103, which was considered in Division 3. The court did charge the substance of two of these Code sections. None of these requests is in proper form (see Division 3). Further, we point out that they have been abandoned by failure to argue same. The other written request submitted was ruled upon in Division 2 above.
10. While plaintiff’s evidence might have authorized a verdict in his favor, defendant’s evidence controverted same; under no circumstances was plaintiff entitled to a directed verdict.
Judgment affirmed.