Smith v. Ingram

• Decision Date: 27 June 1890
• Parties: SMITH ET AL. v. INGRAM.
• Court: Alabama Supreme Court

8 So. 144

90 Ala. 529

SMITH ET AL. v. INGRAM.

Supreme Court of Alabama

June 27, 1890

Appeal from city court of Anniston; B. F. CASSADY, Judge.

This suit was brought by the appellants against the appellee, as the assignee of one Henderson, to whom the plaintiffs allege they rented a certain store-house in the city of Anniston. The defendant pleaded the general issue, and the statute of fraud, the contract of rent with Henderson not being in writing. The cause was submitted to the trial judge, without the intervention of a jury, and he rendered judgment for the defendant; and this judgment is here assigned as error. The facts are sufficiently set forth in the opinion.

Matthews & Whiteside, for appellants.

Blackwell & Keith, for appellee.

CLOPTON J.

Appellants seek by the action to recover the rent of a store-room in the city of Anniston for the months of December, 1889, and January, 1890. The grounds on which their right of recovery is based are that they leased the store to F. M. Henderson for a definite term at $35 a month, payable monthly, and that, before the expiration of the term, Henderson made a general assignment of his property, including the lease, to defendant, who entered into possession of and occupied the store for the purposes of selling the goods, furniture, and effects so assigned to him. The first issue between the parties involves the question whether there was between plaintiffs and Henderson a contract of rent as set forth in the complaint. By the act establishing the city court of Anniston, we are required, when a case is tried without the intervention of a jury, to review the conclusions and judgments of the court on the evidence, without any presumption in favor of the correctness of the findings arising from the advantages for determining the credibility of the witnesses, and the weight and sufficiency of the evidence, possessed by the judge of the trial court, who has the witnesses before him, and can see their demeanor, manner of testifying, and the extent of the influence of bias or interest upon their testimony. Taking and considering the evidence as the record presents it, the preponderance reasonably satisfies the mind that, about the last day of August, 1889, the plaintiffs proposed to Henderson to rent him two rooms at $50 per month, payable monthly, for a year commencing on the 1st day of September, 1889, and ending September 1, 1890. This proposition was neither accepted nor declined by Henderson in words, but on October 1, 1889, Henderson telephoned plaintiffs to know if it would be right to move into the store; and, receiving an affirmative reply, moved in. This proposition is testified to by two witnesses, being one of the plaintiffs and his son. Henderson does not positively deny the proposition as testified to, but states that if anything was said as to the terms of renting, except the price, he did not so understand it, and thereupon states that he did not rent the store for one month, or for any other specified term. These are the only witnesses who testify to the terms of the proposition. They occupy the same relation to the case, and nothing intrinsic in the evidence tends to discredit either. It is not essential that the acceptance of the proposition should be instantaneous, or written or spoken. Moving into the store, after having telephoned whether it would be right to do so, without suggesting or proposing any change of terms, was an acceptance of the terms previously offered, and constituted a contract.

On October 31, 1889, Henderson made to defendant a general assignment for the benefit of his creditors, which he accepted. Though the assignment does not, in terms, transfer the lease, nor import that Henderson had such lease, its language, "all property, real and personal, owned by the assignor, except specified exempt property," is comprehensive enough to include and transfer the lease. The mere acceptance of the assignment would not render defendant liable as assignee of the lease. There must be an acceptance of the term, or some act indicating an intention to accept it. The assignee has the right to elect whether he will take the property assigned and exclude the lease. If he accepts a general assignment transferring a lease of premises held by the assignor, without excluding the lease, and with knowledge of its terms enters into possession under it, he becomes liable as assignee...