A.G. Rhodes Furniture Co. v. Weedon

• Decision Date: 14 January 1896
• Court: Alabama Supreme Court
• Parties: A. G. RHODES FURNITURE CO. v. WEEDON ET AL.

19 So. 318

108 Ala. 252

A. G. RHODES FURNITURE CO. v. WEEDON ET AL.

Supreme Court of Alabama

January 14, 1896

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Action by Weedon & Dent against the A. G. Rhodes Furniture Company. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

This action was brought by the appellees, Weedon & Dent, a partnership, against the appellant, the A. G. Rhodes Furniture Company, to recover the sum of $260, alleged in the complaint to be due "for the use and occupation by the defendant of a certain storehouse and lot in the city of Eufaula." The defendant pleaded: (1) the general issue and (2) "that plaintiffs sue for the rent of a storehouse in Eufaula for the term from September 1, 1892, to September 1, 1893, by reason of alleged holding over by defendant. And defendant avers that the contract by which defendant went into possession of said house prior to September, 1892, was void under the statutes of fraud, being verbal, and for longer than one year; and, said original contract being void, defendant is only liable for the time it occupied said premises, and is not liable for the whole year after the termination of said void contract." To the defendant's second plea the plaintiffs demurred on the following grounds: "(1) That said plea fails to aver that defendant never went into possession of the premises under the verbal contract for more than a year as therein mentioned, and never paid the whole or a part of the purchase money; (2) that said plea is insufficient in law." This demurrer was sustained by the court, and to this ruling the defendant duly excepted.

On the trial of the cause, as is shown by the bill of exceptions the plaintiffs introduced evidence tending to show that in June, 1891, they, by George H. Dent, one of the plaintiffs made a verbal contract, not in writing, with the defendant for the rent of a certain storehouse and lot in the city of Eufaula; that by the terms of said contract the lease or rent was to commence on September 1, 1891, and was to continue until September 1, 1892; that defendant did not go into possession of said storehouse and lot until the 1st day of September, 1891, but went in then under said contract; that defendant continued in possession of said rented premises from September 1, 1891, to September 1, 1892, paying the rental therefor, $22.50 per month; that defendant remained in possession of said rented premises for one month after September 1, 1892, without any contract, but simply by holding over; that defendant paid the rental for every month that it actually occupied the rented premises; that defendant moved out and vacated said rented premises on or about September 28, 1892, and tendered the possession thereof and the key to said storehouse to the plaintiffs, and that defendant never occupied or had anything to do with said rented premises after it had moved out as aforesaid; that the plaintiffs declined to accept said key, and claimed the rent for the balance of the 12 months which began September 1 1892; that defendant declined to pay said balance claimed by plaintiffs, and denied its liability therefor, and plaintiffs then began this action by attachment, which was levied on the personal property of the defendant; and that said premises remained vacated and unoccupied from the time defendant moved out to September 1, 1893. Defendant introduced evidence tending to show that it was a corporation under the laws of Georgia; that J. T. Smith, as its agent, had charge of its furniture business in Eufaula, with authority to sell such goods or furniture as were shipped to Eufaula by defendant for that purpose; that defendant had a branch store in Eufaula, and said Smith was its agent in charge of said branch store, and the only agent there; and that it was necessary for said company to have a building in which to do business if it continued business, but at the time it contemplated going out of business. Defendant introduced evidence further tending to show that by its agent, said J. T. Smith, in June, 1891, it made a verbal contract with plaintiffs for the rent of their store in Eufaula, to commence on September 1, 1891, by the month, for $22.50 per month, and defendant was to be liable for the rent only for the time that defendant occupied said premises; that defendant occupied said premises from September 1, 1891, to September 20, 1892, and paid all of said rent as aforesaid for the whole of said time, including the rent for the whole of the month of September, 1892; but that the rent for September, 1892, was paid after suit brought. On September 20, 1892, defendant moved out of said rented premises, and tendered to plaintiffs the key to the storehouse.

On cross-examination of George H. Dent, one of the plaintiffs, and a witness for the plaintiffs, the defendant asked the witness if he was not a large owner of real estate in Eufaula, and made contracts of rent for many houses, stores, and other real estate; and defendant made it known to the court that the witness would answer in the affirmative, and that the object of the question was to test the recollection of the witness, and that the evidence was sought for that purpose. Upon the objection of the plaintiffs, the court refused to permit said question to be answered, and to this action of the court defendant then excepted. Said J. T. Smith testified in behalf of defendant that he, as agent of defendant, had no authority, and was specially instructed by defendant not to rent said premises from plaintiffs by the year, but to rent the same by the month, binding defendant to pay for the time it actually occupied said premises only. J. F. Smith testified for defendant that he was the general manager of the business of defendant, and that J. T. Smith was appointed by him as agent for the defendant at Eufaula; and, acting for defendant, he instructed said J. T. Smith to rent said premises from plaintiffs by the month only, and not to make a contract by which the defendant would be bound for the rent except for the time it actually occupied the premises. On motion of plaintiffs, the court excluded this evidence from the jury, and to this ruling defendant duly excepted. Defendant then offered to prove by J. F. Smith that said J. T. Smith had no authority from defendant to rent said premises from plaintiffs, except by the month, making defendant liable for only the time it actually occupied the premises; and that his authority was thus limited, as defendant contemplated at that time winding up and closing its business at Eufaula. The plaintiffs objected to this evidence, and the court sustained the objection, and refused to permit such proof to be made, and defendant duly excepted.

Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they must find for the defendant." (2) "That no holding over of real estate under a contract void under the...