Montgomery v. Willis

• Decision Date: 18 June 1895
• Parties: MONTGOMERY ET AL. v. WILLIS ET AL.
• Court: Nebraska Supreme Court

45 Neb. 434

63 N.W. 794

MONTGOMERY ET AL.

v.WILLIS ET AL.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. Where a tenant for a year remains in possession over his term, and is recognized as a tenant by the landlord, and no new contract is shown, he becomes a tenant from year to year.

2. The above rule is, however, only a rule of presumption, which may be rebutted by proof of a different agreement, or of facts inconsistent with the presumption.

3. Therefore, where, before the expiration of a lease for one year, the tenant informs the landlord that he will not remain for another year, but will remain for a short period, and pay rent at the old rate for any time he may remain in possession, and the landlord acquiesces, and thereafter receives the rent, a tenancy from year to year, or for another year, is not created.

4. In such case the tenant, before surrendering possession, is not required to give any notice of his intention to quit.

5. Where an action is brought for rent, and the answer does not admit facts sufficient to raise a presumption of a lease entitling the landlord to the rent demanded, the burden of proof is upon the landlord to establish such a lease.

6. The refusal to give a correct instruction, relating solely to the measure of damages, is not prejudicial error where the jury, by a verdict for the defendant, has shown that it was not brought to a consideration of the measure of damages.

Error to district court, Dawes county; Kinkaid, Judge.

Action by Milton Montgomery and another against George H. Willis and another. There was a judgment for defendants, and plaintiffs bring error. Affirmed.Albert W. Crites, for plaintiffs in error.

D. B. Jenckes and C. H. Bane, for defendants in error.

IRVINE, C.

This was an action for rent by Montgomery and Crites against George H. Willis and John U. Willis, the petition alleging that the plaintiffs leased certain premises to the defendants, who were partners, for one year from the 15th of April, 1890, reserving a rent of $35 per month, payable on the 15th day of each month; that at the expiration of the term the defendants, with the consent of plaintiffs, held over and became bound for another term of one year, from the 15th of April, 1891; that on the 15th day of August they abandoned the premises, and refused to pay further rent, to the damage of plaintiffs in the sum of $150. The defendant George Willis answered, admitting the lease for one year after April 15, 1890, and averring that prior to the termination of that lease the defendants dissolved partnership, and the plaintiffs released the firm, and agreed with the defendant George Willis that he should occupy the premises for three months; that the defendant paid rent to the 14th day of August, when he vacated the premises and delivered the keys to the plaintiffs, who received them. There was a verdict and judgment for defendant, and the plaintiffs bring the case here for review.

The defendant Willis testified that before the expiration of the first term he informed Mr. Crites of the dissolution of the partnership, and that he (Willis) would not take the premises for another year, but would occupy them for a short time, and pay rent at the old rate for any period which he might occupy them; that Crites acquiesced, and from month to month received the rent from him. Mr. Crites, in the most emphatic terms, denies this transaction, and, in the brief, contends that the facts should be found in accordance with his testimony. It is not for us, however, to weigh this testimony. It was squarely conflicting, and the verdict of the jury, which has been sustained on motion for a new trial by the trial judge, cannot be disturbed. Accepting Mr. Willis' version of the facts, no tenancy from year to year was established. Such a tenancy will be presumed where a tenant remains in possession after the expiration of his term, and his tenancy is recognized by the landlord, where no new contract was made. Critchfield v. Remaley, 21 Neb. 178, 31 N. W. 687. This rule is, however, only a rule of presumption; and the presumption is rebutted by proof of a different agreement, or of facts inconsistent with the presumption. Shipman v. Mitchell, 64 Tex. 174;Williamson v. Paxton, 18 Grat. 475;Grant v. White, 42 Mo. 285;Secor v. Pestana, 37 Ill. 525. Shipman v. Mitchell was a case analogous to that before us. In that case it was held that if, at or before the expiration of the former lease, the landlord informed the tenant that he would not be permitted to remain another year, but only from month to month, then no tenancy from year to year could be implied. In the case before us it was the tenant who informed the landlord he would not remain another year. But the principle is the same. Nor was...