Fisher v. Nelke

• Decision Date: 21 October 1915
• Citation: 95 A. 508
• Parties: FISHER v. NELKE.
• Court: Maine Supreme Court

95 A. 508

FISHER

v. NELKE.

Supreme Judicial Court of Maine.

Oct. 21, 1915.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Arthur W. Nelke against Eliza E. Fisher. Verdict was directed for plaintiff, and defendant excepts. Exceptions overruled.

Argued before SPEAR, KING, BIRD, HALEY, and HANSON, JJ.

Franklin Fisher, of Lewiston, for plaintiff. McGillicuddy & Morey, of Lewiston, for defendant.

SPEAR, J. This is an action of assumpsit for rent On November 1, 1913, the plaintiff gave a written lease of the premises in question to the defendant for one year. After the expiration of the lease, November 1, 1914, the defendant remained on the premises until December 4th following, and was at this date a tenant at will. The plaintiff seeks to recover for the whole month of December, while the defendant contends he was responsible for only the four days he was in actual occupation. The plaintiff filed an affidavit, under the statute, of the amount due her, which made a prima facie case, and threw the burden upon the defendant to show why she should not recover. This burden he assumes by setting up an oral agreement with the plaintiff's agent whereby he says it was mutually agreed that he should have the privilege of vacating the premises, at any time after the expiration of the lease, by paying rent for the actual time he occupied them. After the testimony was all in the presiding justice ordered a verdict for the plaintiff, and the case comes here on exceptions to that ruling. The only issue in the case, accordingly, is whether the defendant upon his own testimony has sustained the burden of proof.

It appears that, during the life of the lease, the plaintiff had an opportunity to sell the premises, and had some conversation with the defendant about moving out, and offered him $100 if he would vacate so she could sell; but the defendant declined, saying it was his intention to buy the property for himself. Following this conversation, the agreement which the defendant claims, regarding notice and vacating the premises, may be found in the following testimony of the defendant. On direct examination this appears:

"Q. Now, then, what conversation did you have, if any, about moving out without notice, and with whom was it had? A. I leased the property with the intention of buying it. They had it for sale, and he came to me— Q. Who did? A. Mr. Fisher; during that period I had it, and wanted to know if I was going to buy it. I told him I thought I was. 'Well,' he says, 'I have got a chance to sell, and I will give you $100 if you will let me have that chance.' Well, my intention was to buy the property, which I didn't buy; but he said, after the lease, this property was for sale, and 'if you don't buy it, I shall expect you to move out any minute that I get a chance to sell it.' That was the understanding, that I should have to move any time that he had a chance. Q. What did he say about your giving him notice, or your giving him no notice? A. That I shouldn't give him any notice, and he wouldn't give me any; that I should move out any minute, or I should have the privilege of moving out any minute."

On cross-examination he further says:

"Q. No; answer the question. I want to know. You testified on direct that you had a conversation with me about terminating your tenancy. Is that right? A. Isn't it? Q. Is that true? A. That is true. Q. Where did you have it with me? A. Up in the office. Q. Whose office? A. My office. Q. And what time? A. When you offered me $100 bonus, you remember. Q. When did I offer that? A. Didn't you...