#### WILLIAM COOKE *vs.*JOHN S NORRISS.

In an action for uso and occupation, where it appeared that one P. liad leased the premises to tho defendant for the year 1844,, that in the latter part of that year ho, with the knowlodgo and consent of the defondant, rented the samo to the plaintiff for tho year 1845, who leased a part of the same promises to the defendant, who occupied them and held them under the plaintiff. *Held*that, if this was a case, in which attornment was nocessary, the defendant had attorned, and at. all events was liable to the plaintiff for the ront.

*Held,*further, that the defondant having abandoned tho premises before the end of tho year 1845, and no specific contract being proved as to the time ho should enjoy them and the premises being a wharf and waro-house in a commercial town, it was properly left to the jury to say for what time the parties intended the lease to continue, and the Court could not non-suit the plaintiff, because his action was brought before tho expiration of the year,

Appeal from the Superior Court of Law of New Hanover County, at the Spring Term, 1847, his Honor Judge Manly, presiding.

This is an action for use and occupation of a wharf in the town of Wilmington. The ease is — the wharf in question together with an adjoining lot, on' which was a ware-house belonged to one Parsley, who hired them to the defendant for tho year 1844. The defendant was engaged in erecting a public building for the United States on a lot adjacent to the wharf and hired the premises for the convenience of carrying on his work. In the latter part of the year 1844, Parsley, with the knowledge and consent of the defendant, rented the whole of the premises to the plaintiff for the year 1845, and the defendant hired from the plaintiff a room in the ware-house, and continued his occupation of the wharf. This occupation continued until the middle of the year, when the defendant abandoned the possession and refusing to pay any rent, this action was brought. The recovery of the plaintiff was opposed upon two grounds: 1st, that the defendant had never attorned to the plaintiff; and 2nd, that the action would not lie until the end of the year. Th.e case was left to the j.ury by the presiding Judge upon *214all the facts, stating at the same time it was necessary, in order to find a verdict for the plaintiff,, that they should find some act of attornment or some admission of the plaintiff's title. Verdict for the plaintiff, and appeal.

*Strange,*for the plaintiff.

No counsel for the defendant.

Nash, J.

If this be a case in which the doctrine of attornment applies, the statement made by the presiding Judge shows that the defendant did attorn. The defendant was in possession of the wharf under the plaintiff, His term under Parsley had expired and he had accepted from the plaintiff a lease for the room in the ware-house.

This is simply a case of sub-letting, by which the defendant became a tenant under the plaintiff This was an acknowledgement of his right and coupled with possession under him would amount to an attornment.

We do not think the plaintiff’s second objection a sound one, applicable to this case. It is true as a general proposition that any occupation of one man’s land by another, under a contract, is, in law, considered a tenancy from year to year.- and this from policy and *to*favor agriculture. In which ease, the lessor cannot support an action for the rent until the end of the year.

But it doe® not follow because the law favors leases from year to- year, that the parties- may not contract for a shorter period, and, if so-, the action can be brought as soon as the time of renting, expires it depends upon the contract of the parties. Here there was no direct evidence of a specific contract, either as to'time'or rent, and it was a question for the jury to decide, from the circum»-stances of tlic case, what the contract was. The wharf was' occupied by the defendant, not for the purposes of agriculture, but as a- convenience in carrying on his work on the adjacent lot. If the jury believed that it was understood by the parties mutually that the defen* *215dant was to occupy it for the whole year or for a short time, as his convenience required, then that was their contract, and if they should believe that the convenience of the defendant required its occupation the whole year, the action was prematurely brought, because he would be entitled to the possession until the end of the year. If, on the other side, the convenience of the defendant required a shorter occupation and he terminated his possession, because he had no further use for it, the term ended, and the plaintiff would be entitled to demand his rent as soon as the occupation ceased. We must suppose that the Judge gave an instruction to this effect, or that the defendant did not deem it essential that he should, as no prayer for such instruction or refusal to give it is stated in the defendant’s exception. The omis'sion of proper instruction does not constitute error, but its refusal does. *Simpson*v. *Blount,*3 Dev. 34.

Per Curiam. Judgment affirmed.