United States v. Whipple Hardware Co.

• Decision Date: 06 December 1911
• Docket Number: 38 (1,559).
• Parties: UNITED STATES v. WHIPPLE HARDWARE CO.
• Court: U.S. Court of Appeals — Third Circuit

191 F. 945

UNITED STATES v. WHIPPLE HARDWARE CO.

No. 38 (1,559).

United States Court of Appeals, Third Circuit.

December 6, 1911

Louis G. Morten (Melosh & Morten, on the brief), for plaintiff in error.

H. P Lindabury (John B. Vreeland, U.S. Atty., on the brief), for the United States.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

LANNING Circuit Judge.

This is an action by the United States against the Whipple Hardware Company for the use and occupation of property in Jersey City. While the defendant was in possession of the property as tenant under a lease, its interest therein, and that of its landlord, the owner of the property, were acquired by the United States, by condemnation, under the congressional act entitled:

'An act to increase the limit of cost of certain public buildings, to authorize the purchase of sites for public buildings, to authorize the erection and completion of public buildings, and for other purposes'-- approved June 30, 1906 (34 Stat. at Large, 772).

The final decree in the condemnation proceedings was entered April 21, 1909. The occupancy of the defendant continued from that date until April 13, 1910. There was a judgment in favor of the United States. This judgment the defendant now insists should be reversed.

One of the defendant's contentions is that it continued to occupy the premises after the title had been acquired by the United States, not as a tenant, but as a trespasser. This rather remarkable defense, if proven, would defeat this action. But it is not proven. The evidence shows clearly that the occupation continued with the consent of the United States. Repeated efforts were made by the agent of the United States to reach an agreement with the agent of the defendant as to the rental value of the premises. The defendant was never treated as a trespasser, and it never assumed to occupy the premises otherwise than lawfully. The effort on the part of the United States to make an express contract concerning the occupancy failed, but the obligation of the defendant to pay a reasonable sum for its use and occupancy remains.

The law implies a contract to pay rent from the mere fact of occupation, unless the occupancy be such as to negative the existence of a tenancy. Chambers v. Ross, 25 N.J.Law, 295; 2 Saund.Pl. & Ev. 892, 893. In this case, as the trial judge said in his charge to the jury, there was nothing to negative the existence of a...