McAdoo v. Callum Bros. & Co.

• Decision Date: 28 February 1882
• Citation: McAdoo v. Callum Bros. & Co., 86 N.C. 419 (N.C. 1882)
• Court: North Carolina Supreme Court
• Parties: W. D. MCADOO v. CALLUM BROS. & CO.

86 N.C. 419

W. D. MCADOO

v.CALLUM BROS. & CO.

Supreme Court of North Carolina.

February Term, 1882.

PROCEEDING under the landlord and tenant act heard on appeal at January Special Term, 1882, of GUILFORD Superior Court, before Gudger, J.

The plaintiff on June 1st, 1879, leased to the defendants a store-room in one corner of his hotel with the cellar under it, for the term of one year thence next ensuing, for the sum of $200, due in monthly parts, with condition for the surrender thereof on default of making any payment, and after five days' notice, by a covenant concluding in these words: “W. D. McADoo (the lessor) agrees with Callum Bros. & Co., (the lessees) that at the expiration of this lease they shall have the refusal of the above-mentioned premises for another year.”

In the months of January and February, 1880, the plaintiff notified the defendants that he should require the surrender of the rooms at the end of the term. On May 28th following, the defendants tendered the plaintiff the rent for that month, and a written contract of lease for a second term in the form then in force, for his execution. The plaintiff refused to accept the rent or renew the lease for the same rent. On June 1st, 1880, the plaintiff sued out a warrant under the landlord and tenant act (Bat. Rev., ch. 64, § 20,) to recover possession of the demised premises, and upon the trial thereof, after hearing evidence and argument of counsel, the justice rendered judgment that the plaintiff was not entitled to recover, and dismissed the action at his cost. From this judgment the plaintiff appealed, and notice thereof was accepted by the defendants.

On June 2nd, the day following, the plaintiff caused a notice under his signature to be served on the defendants in these words: “I am offered by a responsible party $350 for the rent of my store-room and cellar, now occupied by you, for the year beginning June 1st, 1880, and ending 31st May, 1881. You can have the refusal of it at that price. If you want to keep it, notify me at once; otherwise I demand possession.”

On the same day after service of the notice the plaintiff sued out a second warrant for the possession of the same rooms, which coming on for trial immediately before the same justice, he adjudged that the plaintiff recover the premises and the rent due under the former contract for the preceding month.

From this judgment the defendants appealed, and upon its rendition, the plaintiff recalled his appeal in the former cause. The defendants on the hearing before the justice and upon the trial in the superior court set up as a defence to the action:

1. That under the covenant for renewal they were entitled to a lease of the premises for another year on the same terms and conditions, and were not wrongfully holding over.

2. That the former proceeding and the final judgment therein were a bar to this action.

3. That if entitled to recover the plaintiff could have damages as rent at the rate of that of the preceding year, up to September 1st, when the defendants abandoned the premises.

The court ruled that the covenant did not oblige the plaintiff to a continuance of the lease for another term at the same rental price, and that his offer of the premises at the increased rent of $350, of which he had a bona fide offer from another, was a compliance with the stipulation that the defendants should have the refusal.

The instruction upon the second point was, that if in the first trial the adjudication was against the plaintiff because he had not then made a tender of the rooms at the higher rent, while such tender had been made and refused before the commencement of this action, this element of difference in the cases, not passed on before, would distinguish them and prevent the application of the estoppel.

And, upon the third point, the jury were directed to give such damages as the plaintiff had sustained, not only the rent for the three months' occupancy, but measuring his losses in the inability to rent out afterwards, in consequence of their withholding, to other tenants. The jury assessed the damages at $200; and from the judgment rendered upon the verdict the defendants appeal to this court.

Messrs. Dillard & Morehead and J. N. Staples, for plaintiff .

Messrs. Scott & Caldwell, for defendants .

SMITH, C. J., after stating the foregoing.

We do not concur in His Honor's interpretation of the plaintiff's contract in reference to the optional renewal of the lease given to the defendants. The meaning of the clause allowing them the refusal of the premises for another year,...