Moore v. Western Meat Co.

• Citation: 16 N.M. 107,113 P. 827
• Parties: MOOREv.WESTERN MEAT CO.
• Decision Date: 04 February 1911
• Court: New Mexico Supreme Court

16 N.M. 107

113 P. 827

MOORE

v.WESTERN MEAT CO.

Supreme Court of the Territory of New Mexico.

Feb. 4, 1911.Motion for Rehearing Denied March 4, 1911.

Syllabus by the Court.

Where title to real estate is shown in the plaintiff, together with the fact of occupation by the defendant, the law will refer that possession to a rightful rather than a wrongful title, and, where nothing more is shown, the relation of landlord and tenant will be presumed, and a contract for rent implied.

The defendant and its predecessor, claiming possession of real estate under an unauthorized contract to purchase made with an assignee of an insolvent estate, are chargeable with knowledge of the fact that such contract was a nullity, and, having used and occupied the premises thereunder, are liable for the reasonable rental value in a suit for use and occupation of such premises.

The request of the defendant in the trial court for leave to amend its answer by pleading a set-off to the cause of action alleged in the complaint, made after a jury had been impaneled and all of the evidence had been introduced, and both plaintiff and defendant had moved for an instructed verdict, was properly denied.

When each party asks the court to instruct a verdict in its favor, it is equivalent to a request for a finding of facts, and, if the court directs the jury to find a verdict for one of them, both are concluded by the finding made by the court upon which the resulting instruction of law was given, and this court is limited on appeal to a consideration of the correctness of the finding on the law, and must affirm if there is any substantial evidence in support thereof.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by Frank H. Moore, assignee of the estate of Charles Zeiger, insolvent, against the Western Meat Company. There was a directed verdict for plaintiff, and defendant appeals. Affirmed.

The defendant and its predecessor, claiming possession of real estate under an unauthorized contract to purchase made with an assignee of an insolvent estate, are chargeable with knowledge of the fact that such contract was a nullity, and, having used and occupied the premises thereunder, are liable for the reasonable rental value in a suit for use and occupation of such premises.

This is an action brought by the plaintiff as assignee against the defendant to recover for the use and occupation of certain premises belonging to the plaintiff, held and occupied by the defendant from September, 1903, until March, 1908. The plaintiff's amended complaint alleges the ownership of the premises in one Weaver, the former assignee of the estate of Charles Zieger, insolvent, and then in the plaintiff, Frank H. Moore, as the successor in trust, from September 1, 1903, March 7, 1908; that the Blanchard Meat & Supply Company, a corporation, and the predecessor of the defendant, on the 1st day of September, 1903, entered into the possession of certain real estate in the county of Bernalillo and territory of New Mexico; that in June, 1907, the Western Meat Company was organized for the purpose of taking over said Blanchard Meat & Supply Company, and to take over all its properties, including the premises above described, as the successor of said Blanchard Meat & Supply Company, and did then and there undertake to agree and assume, and did assume, all liabilities of said Blanchard Meat & Supply Company; that the reasonable value for the use and occupation of said premises and the reasonable rental value of said premises was during the whole of said period the sum of $50 per month, payable in advance on the 1st day of each and every month; that demand had been made upon the defendant for payment thereof, and that neither the defendant nor its predecessor had ever paid either Weaver or Moore as assignee the sum or any part thereof. In the prayer for judgment plaintiff prayed judgment for $3,067.87, with interest and costs.

The answer admits the original appointment of Weaver as assignee and the title in said assignee by virtue of the deed of assignment made by Charles Zeiger, insolvent; admits the resignation of said Weaver as assignee and the appointment of Moore as his successor in trust; and further admits said assignees, Weaver and Moore, were successively the owners of the real estate described, down to the 7th day of March, 1908. The answer further admits that the Blanchard Meat & Supply Company transferred to the Western Meat Company certain of its real and mixed property, but denies turning over all of its property, and denies that in consideration of such transfer that this defendant undertook and agreed to assume all the liabilities of the Blanchard Meat & Supply Company, and particularly the liability existing, if any, for which this action was brought. The answer further admits that the defendant and its predecessor occupied the premises described from September 1, 1903, to the 7th day of March, 1908.

By a trial amendment it is also denied that the reasonable value for the use and occupation of said premises and the rental value thereof was $50 per month, payable in advance on the 1st day of each and every month, or any sum whatever, and alleges that the Blanchard Meat & Supply Company, predecessor of defendant, entered into possession under an alleged contract of purchase made and entered into between said Weaver, as trustee, and the said Blanchard Meat & Supply Company, which said contract the defendant and its predecessor were at all times ready and willing to complete and perform. The answer also admits that it did not pay assignee Weaver any rental for said premises or for the use and occupation thereof, admits demand and refusal to pay, and generally denies any liability whatsoever for rent for the reasonable use and occupation of said premises. A further trial amendment was sought and refused by the court during the progress of the trial, whereby the defendant sought to allege, as an offset, the payment of certain taxes and insurance and the expenditure of certain moneys for betterments during the period of its occupancy of the premises.

At the conclusion of the testimony for the plaintiff, the defendant demurred to the evidence, and asked that a verdict be directed in favor of the defendant on the ground that the plaintiff had failed to make out a cause of action for use and occupation, contending, among other grounds, that the evidence failed to disclose that the conventional relationship of landlord and defendant tenant had ever existed between the parties or their predecessors. This motion was denied by the court. At the conclusion of the testimony, the defendant renewed its motion for an instructed verdict, which motion was denied, and the court upon motion by the plaintiff directed a verdict in favor of the plaintiff in the sum of $3,358, the same being reasonable rental value of the premises at $50 per month, with interest on each payment computed from the last day of each month.

Klock & Owen and E. W. Dobson, for appellant. A. B. McMillen, for appellee.

WRIGHT, J. (after stating the facts as above).

The defendant by its assignment of errors sets out 17 alleged errors, but for the purpose of this appeal the same have been divided into 4 groups, and will be so considered in this opinion.

1. The first contention advanced by appellants relates to the refusal of the court to direct a verdict in favor of defendant at the conclusion of the plaintiff's evidence, for the reason that the plaintiff had failed to establish the conventional relationship of landlord and tenant between the plaintiff and defendant, which is a necessary element to maintain an action for use and occupation. Counsel for appellant contends that the plaintiff in the lower court by his complaint and proofs attempts to bring a suit for the use and occupation, while as a matter of fact when tested by the rules applicable to such action neither the complaint nor the evidence supports such cause of action. The complaint alleges ownership in the plaintiff and his predecessor, entry and occupation of the premises by defendant and its predecessor, the rental value of the use and occupation of such premises, demand for payment of rent, and refusal so to pay. The proofs offered by the plaintiff in the first instance are no broader than the allegations of the complaint. The question then arises: Do the facts as alleged and proven make out a prima facie case for use and occupation? If so, the complaint and proofs are sufficient, and the court properly denied the motion of defendant for an instructed verdict at the close of plaintiff's testimony. “There are authorities to the effect that one occupying land belonging to another is to be presumed for the purpose of supporting an action for use and occupation to be the tenant of such other, while there are occasional decisions to the contrary that the plaintiff in such action has the burden of showing the relation of tenancy.” 2 Tiffany on Landlord and Tenant, § 317. Cases supporting the first doctrine: Oakes v. Oakes, 16 Ill. 106; Lathrop v. Standard Oil Co., 83 Ga. 307, 9 S. E. 1041; Skinner v. Skinner, 38 Neb. 756, 57 N. W. 534; Page v. McGlinch, 63 Me. 472. Contra: Preston v. Hawley, 101 N. Y. 586, 5 N. E. 770. In the case of Skinner v. Skinner, cited supra, Mr. Justice Regan examines and considers all of the cases cited as in opposition to the doctrine that mere occupancy of the lands of another implies the existence of the conventional relationship of landlord and tenant, and deduces therefrom the following propositions:

“(1) To sustain an action for use and occupation of real estate the relation of landlord and tenant must exist between the parties, based on agreement, expressed or implied.

“(2) One in the exclusive possession of real estate of another with the latter's knowledge, in the absence of all evidence on the subject, will be presumed in possession by the owner's...