Midimis v. Murrell

• Decision Date: 03 June 1925
• Docket Number: (No. 560.)
• Citation: 189 N.C. 740,128 S.E. 150
• Court: North Carolina Supreme Court
• Parties: MIDIMIS. v. MURRELL.

(189 N.C. 740)

128 S.E. 150

MIDIMIS.

v.MURRELL.

(No. 560.)

Supreme Court of North Carolina.

June 3, 1925.

Appeal from Superior Court, Buncombe County; Webb, Judge.

Action by John Midimis, lessor, against J. C. Murrell, lessee, in summary ejectment. Judgment for plaintiff, and defendant appeals. No error.

This action was begun before a justice of the peace, and carried by defendant's appeal to the superior court. The jury rendered averdict for plaintiff for the leased premises and fixed the debt at $119, and judgment was rendered accordingly.

The admitted lease in evidence, contained these provisions:

"No. 1. An option or privilege of extension of this lease for a term of nine years (months) upon the following terms: Whereas, the lessee is indebted to the lessor in the sum of $150 for accrued past rent due, contracted prior to this written lease, it is understood and agreed as a part of the consideration hereto the said lessee may pay said sum at the rate of $5 per week, in addition to the sums above set forth, and that, upon failure to pay the said $5 per week, then the lessor at his option may declare this lease null and void.

"No. 2. It is agreed between the parties hereto that, should this rent at any time remain unpaid for a period of 5 days after the same shall be due and payable, the said lessor may at his option consider said lessee tenant at will, reenter and repossess himself of the said premises."

The evidence of plaintiff tended to show that plaintiff demanded the rents, under the terms of the lease, more than five days before the institution of this action before the justice of the peace, and that defendant had neglected to pay the same. Plaintiff admitted that the only demand made upon the defendant was for the payment of rents under the terms of the lease, that he made demand when the first month's rent was due for the payment of rent, and never demanded the leased premises, and demand for rent payment was five days before this action was instituted. There is no controversy as to amount due plaintiff for failure to pay on account of both quoted provisions in the lease.

The court charged the jury as follows:

"The court charges the jury that, if the jury should find from the evidence in this case that the plaintiff and defendant entered into a contract of lease, as introduced in evidence, and should further find that the plaintiff demanded the rents 5 days before the institution of the action before the justice of the peace, then it would be its duty of jury to answer the first issue, 'Yes.'"

The defendant excepted to the refusal to nonsuit and to the charge, and appealed.

Wells, Blaekstock &Taylor, of Asheville. for appellant.

Fortune & Roberts, of Asheville, for appellee.

VARSER, J. We are of the opinion that the ruling of the court below is sustained by a proper construction of the stipulation, quoted as No. 1 above. This stipulation relates to rent past due at the date of the execution of the lease, whereby the defendant agreed to pay this sum at the rate of $5 per week, in addition to the rental provided in the lease, with the provision "that, upon failure to pay the said $5 per week,...