Whitmore v. Rodes

• Decision Date: 08 March 1927
• Docket Number: 5793.
• Citation: 137 S.E. 747,103 W.Va. 301
• Parties: WHITMORE v. RODES.
• Court: West Virginia Supreme Court

137 S.E. 747

103 W.Va. 301

WHITMORE v. RODES.

No. 5793.

Supreme Court of Appeals of West Virginia.

March 8, 1927

Submitted March 1, 1927.

Rehearing Denied May 4, 1927.

Syllabus by the Court.

Where the lessor and lessee meet and, in the presence of each other, sign a written lease prepared by the former, proof of an actual, manual delivery of the instrument to the lessee is not a necessary incident to a recovery of rent due thereunder by the lessor, if it be shown that said lessor's acts have been consistent with an actual delivery, and that the lessee, by formal assent or unequivocal acts, such as entering into possession of the premises and paying rent for a time in accordance with the terms of the writing, has treated the instrument as being actually in force and binding on him. Delivery is a matter of intention; if it clearly appear from the evidence that both the lessor and lessee considered the lease as binding upon both of them at the time of signing, and acted in accordance therewith delivery thereof is presumed.

Error to Circuit Court, Kanawha County.

Motion for judgment by Clifton W. Whitmore against F. S. Rodes. Judgment for defendant, and plaintiff brings error. Judgment reversed, verdict set aside, and a new trial awarded.

A. G Thompson, of Charleston, for plaintiff in error.

England & Ritchie, of Charleston, for defendant in error.

WOODS J.

Motion for judgment in the circuit court of Kanawha county to recover rent claimed to be due under an alleged written lease. Judgment for the defendant.

Whitmore the plaintiff, after some negotiations with Rodes, the defendant, agreed to lease the latter a certain storeroom at 217 Broad street, in the city of Charleston, which said agreement was reduced to writing. By the provisions of said writing, bearing date of August 1, 1923, Rodes was to have the use of said storeroom for a period beginning with the date thereof and ending December 31, 1924, at a monthly rental of $125. Rodes, Whitmore, and Whitmore's wife according to the testimony of Whitmore, signed duplicate copies of said writing, one copy thereof being delivered to Rodes at the time of signing. After terms had been agreed upon and the writing signed, Rodes ordered a stock of goods from a firm in Ohio, moved same into said storeroom, and occupied the same for a period of ten months, paying the rent provided in the written lease. On May 1, 1924, Rodes gave Whitmore notice that he intended to vacate during the month, and did vacate on May 28th. Whitmore, by his attorney, filed a notice (service thereof having theretofore been accepted) on the 29th day of December, 1924, that he would move the circuit court on the 19th day of January, 1925, or as soon thereafter as he might be heard, for judgment for rent under said lease for the period June 1st to the expiration date of the lease, namely December 31, 1924. Defendant pleaded the general issue, and was permitted, over objection of the plaintiff, to file a special plea setting up certain offsets against plaintiff's claim. The jury returned a verdict for the defendant, and judgment was entered thereon. Plaintiff claims error.

The error relied on for reversal is that the jury were not properly instructed. The court denied all of plaintiff's instructions and gave two at the instance of the defendant. Plaintiff's instruction No. 3 was to the effect that the jury must find for the plaintiff in the event they believe from the evidence that a copy of the written lease introduced in evidence was signed by the plaintiff and was delivered to the defendant and accepted by him. It is admitted by the defendant that he signed the lease. So the question of whether a written lease signed by the lessor is binding, although not signed by the lessee when the lessee has taken possession thereunder, does not arise here. The sole controverted fact presented in this case is whether there had been a delivery to defendant of the lease. Whitmore testified that he signed the lease and delivered it to the defendant. Hence the instruction asked for, applied to the facts in the case, properly defined the issue involved here. Where conflicting theories of a case are presented by the evidence, each party is entitled to have his view of the case presented to the jury by proper instructions. It was error to refuse the instruction. Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; State v. White, 81 W.Va. 516, 94 S.E. 972; Shires v. Boggess, 72 W.Va. 109, 77 S.E. 542; Caroway v. Cochran, 71 W.Va. 698, 77 S.E. 278; State v. Clark, 64 W.Va. 625, 63 S.E. 402.

The defense of the defendant is that the writing he signed was never delivered to him--hence, it was not an executed paper and not binding on him. While admitting that he read the lease, and that the same seemed satisfactory, he further testified that at the time of signing Whitmore explained to him that another party must sign before delivery of a copy could be made to him, but that Whitmore did not advise him as to the identity of said other party. For this reason Rodes claims that he occupied the storeroom in question only as a tenant at will or as a tenant from month to month, and subject to removal at the end of said rental period, on proper notice from Whitmore. He states that he moved to more permanent quarters to protect his business. Whitmore, however, proceeds on the theory, and so...