Simons v. Lebrun
| Decision Date | 08 January 1941 |
| Docket Number | 755. |
| Citation | 12 S.E.2d 644,219 N.C. 42 |
| Parties | SIMONS v. LEBRUN. |
| Court | North Carolina Supreme Court |
Civil action in summary ejectment instituted December 29, 1939, for possession of a dwelling house at No. 120 Marlette Street in the town of Chapel Hill, North Carolina, heard in Superior Court upon appeal thereto by defendant from judgment in the court of a justice of the peace.
Plaintiff claims that defendant was his tenant and that such tenancy has expired, but defendant continues to hold possession and refuses to vacate the property.
On the other hand, the contention of defendant in both courts, as shown in return to notice of appeal, and in the agreed statement of case on appeal, is that there is no lease, but that the contract establishes the relationship of employer and employee, and not that of landlord and tenant, and that hence, the action should be dismissed for want of jurisdiction.
Upon the trial below plaintiff offered evidence tending to show these facts: On September 11, 1939, plaintiff being the owner of two brick veneer houses at No. 120 and No. 122 Marlette Street in Chapel Hill, North Carolina, entered into a written agreement with the defendant, Harvey Lebrun, by the terms of which plaintiff employed defendant "as manager and custodian of said houses" for a term commencing September 15, 1939, and ending August 28, 1940. It was agreed therein "that Harvey Lebrun shall be responsible: (1) for assistance in renting out the room or rooms not occupied by himself and his wife; (2) for collection, and weekly transmission to M. A. Simons of all rents; (3) for proper care and supervision of the houses; (4) for seeing that no unlawful use is made of the premises; (5) for seeing that no cooking shall be done in either house except in the kitchen or basement of that house; and (6) for seeing that the rental contracts with roomers are carried out in full"; that "except in case of emergency repairs and replacements necessary to safeguard life or property, M A. Simons shall not be held responsible for expenses of any kind incurred by Harvey Lebrun unless such expenses have previously been authorized by M. A. Simons"; that "when there are no additional roomers in the houses, Harvey Lebrun shall settle, at his own expense, all bills for light, fuel and maid service"; that "unless there are a sufficient number of roomers, in either or both houses, to bring in $75 net income over and above the expense of paying a maid, no maid service shall be paid for out of the income from such house or houses"; that "the general scale of rentals to be charged and the general classes of roomers or tenants to be secured will be in accordance with instructions from M. A. Simons but that in details of rental, accounting, management, operation, and maintenance, and, in general, in all matters not specifically excepted elsewhere in this agreement, Harvey Lebrun shall have authority to act on his own initiative and discretion on behalf of M. A. Simons, as fully as though M. A. Simons were acting personally"; that "the advice of M. A. Simons will be obtained in advance of any important actions; that any actions, decisions, etc., affecting the rental and the management of these houses that may be subject to question or doubt will be discussed by Harvey Lebrun with M. A. Simons"; that "all expenses for taxes, assessments, insurance, improvements, equipment, furniture, furnishings, and repairs or replacements other than those necessitated by current use, wear and tear shall be handled and paid for by M. A. Simons"; that "such expenses shall not enter into any calculations of net income, profits, or commissions under this agreement"; that "if the net income from either house (after the payment of current expenses for operation and maintenance) is in excess of $75 during any money (month) from September to May, inclusive, or in excess of $50 during any month from June to August, inclusive, Harvey Lebrun shall receive, semimonthly, on the first and fifteenth of each month, fifty per cent of any such excess on each house"; that "in case the kitchen at 120 Marlette Street is not rented out as part of an apartment, Mr. and Mrs. Harvey Lebrun shall occupy and use the kitchen, in addition to their other room"; that "in that case, if the frigidaire and the electric range are used by Mr. and Mrs. Lebrun during any month in which Harvey Lebrun is not already paying either all of the electricity bill" when there are no additional roomers, "or half" in ascertainment of net income as above provided, "and if the bill *** is in excess of ten dollars ($10.00) during such month, such excess expense shall be shared on a 50-50 basis between Harvey Lebrun and M. A. Simons, provided that any amounts received from tenants for special uses of electricity shall be first charged off against this excess"; that "M. A. Simons shall, at all reasonable times, have full right of entry, inspection, installation, repairs, etc., to each house"; that "the terms and conditions of this agreement may be modified or cancelled at any time by mutual consent"; that "the entire arrangement may be terminated at the end of any academic quarter, on thirty days' notice either from Harvey Lebrun to M. A. Simons or from M. A. Simons to Harvey Lebrun"; and that "in any notification, authorization, or other action under this agreement, either M. A. Simons or Harvey Lebrun may act either orally or in writing, ***".
Evidence for plaintiff further tended to show that this agreement is the only one between the parties; that after the execution of said agreement defendant Harvey Lebrun went into, and has continuously remained in possession of the property; that plaintiff notified defendant several times orally that he was going to terminate the contract in accordance with the contract "at the end of any academic quarter", and on November 16, 1939, gave defendant written notice in person, as follows: ; that the last rent he accepted from defendant was around the 1st of December, 1939; that at the time he told defendant orally that he desired to terminate the arrangement, defendant said that they would be glad to get out; that defendant is married and he and his wife live at 120 Marlette Street; that defendant was not asked to vacate the house at No. 122 Marlette Street because he had never occupied rooms there; and that $75 is a fair monthly rental for the property at 120 Marlette Street.
Defendant, on the other hand, testified: That he entered the property at 120 Marlette Street under the terms of the contract on September 12, 1939; that he occupied one room continuously, used the kitchen after it was found that it could not be rented as a part of an apartment and occasionally used other rooms as they became vacant; that he is engaged in research and writing from which he earned his living; that he accepted employment from plaintiff to supplement his earnings; that he was not getting his living out of the house, but was supplementing his income in accordance with the contract; that he was not paying any rent to plaintiff but was only expected to turn over to him rents which he collected; that he was to occupy one or more rooms as available and was not to pay rent for them; and that he had made reports to plaintiff as long as he would accept same.
Defendant reserved exceptions to refusal of court to grant his motion for judgment as in case of nonsuit at close of plaintiff's evidence, and renewed at close of all the evidence.
These issues were submitted to and answered by the jury as follows:
The jury, under peremptory instructions from the court, answered both the first and the second issues as indicated. Defendant excepted to such instructions.
From judgment on the verdict, defendant appeals to Supreme Court and assigns error.
Henry A. Whitfield, of Chapel Hill, for plaintiff-appellee.
L. J. Phipps, of Chapel Hill, for defendant-appellant.
By exceptions to the refusal of the court to grant his motions for judgment as in case of nonsuit under C.S. § 567 and to the peremptory instructions as to the first and second issues, assigned as error, and by demurrer ore tenus in this Court, defendant appellant challenges the jurisdiction of the court over the subject matter of this action. In the light of the facts as they appear in the record on this appeal we are of opinion and hold that the challenge is not well founded.
The jurisdiction of a justice of the peace in civil actions for recovery of possession of real estate is entirely statutory,-- and is derived from the landlord and tenant act providing for summary ejectment. Chapter 46, Article 3 Section 2365 et seq., of Consolidated Statutes of North Carolina 1919. Such jurisdiction may be exercised only in cases where the relationship of landlord and...
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