Eddins v. Galloway Coal Co.

• Decision Date: 27 January 1921
• Docket Number: 2 Div. 741
• Citation: 87 So. 557,205 Ala. 361
• Parties: EDDINS v. GALLOWAY COAL CO.
• Court: Alabama Supreme Court

87 So. 557

205 Ala. 361

EDDINS v. GALLOWAY COAL CO.

2 Div. 741

Supreme Court of Alabama

January 27, 1921

Rehearing Denied Feb. 19, 1921

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Action in unlawful detainer by the Galloway Coal Company against Harry Eddins, first brought in justice's court. Judgment in circuit court for plaintiff, and defendant appeals. Affirmed.

Frank S. White & Sons, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

McCLELLAN J.

This is an action of unlawful detainer, instituted by the appellee against the appellant, the appellee's employee. From a judgment for the plaintiff in the justice's court, the defendant took an appeal to the circuit court, where the plaintiff again prevailed, and it is to review this judgment the present appeal is prosecuted.

The defendant offered no evidence on the trial in the circuit court. Similar causes to this are disposed of in Vinyard v. Republic Iron & Steel Co., 87 So. 552, and Allen v. Southern Coal Co., 87 So. 562, delivered this day. Questions therein decided are omitted from consideration in this opinion; repetition being unnecessary.

It appears without dispute in the evidence that on and prior to May 8, 1920, defendant was in the employ of the plaintiff that he quit work at that time, and has not since worked for plaintiff or for anyone else; that on February 1 1920, the authorized agent of the plaintiff (its superintendent) verbally leased to the defendant its house known as No. 154, located at Garnsey, Bibb county, Ala., together with the inclosure in which the building was located; that by the terms of the verbal lease defendant "was to pay rent for the house and premises by the month, and occupy them by the month"; that upon making the lease on the date stated the "defendant took possession" of this house and premises, and "still holds possession of the same"; and that the defendant paid the monthly rental ($5) stipulated in the verbal lease for the months of February, March, April, and May, 1920. It further appears without dispute that the premises in question were rented to the defendant (appellant) "at this price (i.e., $5 per month) in consideration of his being in the employment of the plaintiff," that this house and its curtilage "were owned by the plaintiff," and that this house, with others, was "built and used exclusively for the purpose of being used by" the plaintiff's employees.

The day (February 1, 1920) this verbal lease was consummated was Sunday. The lease, as such, was void under the provisions of Code, § 3346. While, for that reason, invalid as a lease, its terms were admissible and serviceable to prove, when undisputed, the character and quality of defendant's possession of the premises, the relation between the parties with respect to these premises, and the intent of the parties with regard to the duration of the tenure they designed to establish in the defendant; this upon the theory that the terms of the invalid lease were declarations or admissions of the parties which formed a part of the res gestae of their acts--the statute (Code, § 3346) not precluding the availability as evidence of a pertinent, relevant declaration or admission of parties, even though made on Sunday. Rainey v. Capps, 22 Ala. 288, 292, 293.

The evidence indicated--reciting the terms of the lease that was void as such, because made on Sunday--shows, without adverse inference, that the relation between these parties was that of landlord and tenant; that the tenancy (the only tenancy) intended to be created by the parties was that of a monthly, not a yearly, character and duration; and that the rental was at the rate of $5 per month, the payments for four months succeeding the entry unmistakably manifesting that as the intent common to the parties. Code, § 4732, provides:

"Where no time is specified for the termination of tenancy, the law construes it to be for the calendar year. ***"

This statute is without application in the circumstances disclosed by this record, for these reasons: (a) It presupposes a valid contract of lease, a condition not present in the cause at bar; (b) if the statute's quoted provisions do not...