Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-22
IMPORTANT DECISION.
Opinion of the Supreme Court Ina |
Complicated Case of Rents.

strong and Il. y. ID orls and horace II. Hafri-
son, executors Of Joseph Swans deceased.
| This is a suit brought for the use and
occupation of two Storehouses in the city
of Nashville, for the year 1862 The
declaration is in the usual form. The de-
PENDANTS plead: First, general denial Of
the debt; second, the defendant McCrery
plead specially, that he rented from the
| plaintiff the two storehouses for the year
1862, at the rate of 81 500 per annum for
both; that he sublet one OF them to the
defendant Armstrong for 81 800; that the
said Armstrong agreed to execute his
note, payable quarterly with security;
that shortly after the renting, and before
| the execution of the notes, the plaintiff
went to said Armstrong and directed
him not to execute his notes to the de-
PENDANT McCrory; that he was the owner
of the property, and that defendant Nc
Crory had no right to sublet, thereby he
failed to get the notes of the said Arm
strong, and that he has become insolvent,
and that he has sustained damage to the
amount of the rent agreed to be paid.
| Replication and issue was taken on the
several pleas.
The jury upon the evidence adduced
and the charge of the Court, found the
issues in favor of the defendant, McCrory,
and against the defendant Armstrong for
81 ,094 81, and against K. j. Morris and
Horace H. Harrison, executors etc. of
10. Swan for the sum of 1926.
The plaintiff moved the court for
new trial, and in support of the motion,
read his affidavit, and the affidavit of f.
B. Harris. The motion was over-ruled,
and Judgment rendered in accordance with
the verdict, to which the plaintiff ex,
cepted, and appealed on error to this court.
The facts necessary to be stated are
substantially as follows:
The plaintiff in 1861, rented the two
storehouses, for the use and occupation
of which this suit is brought, to one Jo>
seph Swan, the testator of Morris, and
Harrison, for the year 1861, for the sum
of s., 400; the renting to expire on the
Doth of December, 1861. About the
time of the expiration of the renting,
the plaintiff, who resided in Sumner
county, came to Nashville and tried to
get Swan to deliver to him the possess
sion of the houses, stating to him that
he had rented them for the year 1862 to
Gilkeson, etc. Swan did not deliver the
possession but informed the plaintiff
that they could move in that he would
not be in their way. He was told that
they would not move in, unless he would
move out several applications were
made to the plaintiff to get the posses
sion with like results. Swan continued
to occupy one OF the houses until the
spring of 1862 as storehouse. In the
winter or spring Of the year 1862, the rtst
of the house occupied by McCrOry fell in,
and he removed his desk to the house in
which Swan resided-one Of the store
houses was occupied by the defendant
Armstrong for the year 1862. There is
no proof in the record to show any occu-
patton by McCrory for the year 1862, ex-
cept he kept his desk in the room occu-
pied by Swan, and was about the prem
ises frequently. The court charged the
jury in substance: If the defendants, or
either of them, leased the storehouses, as
alleged in the declaration, under special
contract, he or they would be liable ac-
cording to the terms of the contract; that
il the defendants, or either Of them, went
into the possession with the acquiescence
of the plaintiff, and used and occupied the
houses, they would be iiable-if there
was no special contract " it'll either de-
fendant-but, if Swan had rented for
1861, at which time his renting expired,
and he failed to give possession, and held
over by permission of the plaintiff, or If
he stated to plaintiff his tenants could
move in at any time, yet Swan remained
| there in one or both of the houses short
time, or used and occupied the same with
out contract, Swan would be bound for
what time he so remained and occupied
the houses for reasonable rent and, if
while he so occupied one or both of the
| houses, the defendant Armstrong moved
| in and occupied one or both Of said houses
for the year 1862, he armstrong; would
be liable for reasonable rent for the
year, or for the time he used and occupied
| the same. The plaintiff IS counsel re-
ouested the court to charge the jury
| that if the plea of the defendant, Nc
Crory, shows a contract for the renting Of
the houses for 1862, Interpolation admits
that this being so, no other proofs neces-
sary to prove the contract. The lnstruc-
tons were refused by the court. The
court instructed the jury, the plea of non
assumpsit being in, throws the onus on
the plaintiff proving his cause. That
part of his Honor's charge, to which ex-
ception is taken is, in which he states to
the Jury, "If Swan stated to the plaintiff
that his tenants could move in at any time;
vet, if said Swan remained there short
time, in one or both houses, or used and
occupied the same without contract, he
would be bound for the house he so re-
NAMED and occupied for reasonable
rent" This part of the charge we think
erroneous. Where the letting is from
year to year or for year, if the tenant
holds over, the landlord may elect to treat
him as tenant from year to year; or,
where the renting is for shorter period,
and he holds over, he will be deemea to
hold upon the terms upon which he en-
tered, and the landlord is entitled to re-
| cover the value of the rent as fixed by
the terms of the original contract upon
which the lease was made. 1t is the
duty of q tenant, at the expiration OF his
term of leasing, to restore the possesslor
to the landlord. He cannot impose terms
upon him as to the possession of tht
property. To avoid the liability the law
throws upon him, he must surrender thu
possession.
If he refuses to quit, the land
lord will not be justified in resorting II
force to put him out. He may either resor
to his legal remedy to get the POSSESSION
or treat him as tenant. The tenan
must, at the expiration of the term, CIV
the landlord the complete possession G
the property, and unless this is done, tn
tenants responsibility for rent will no
cease, and be will be deemed 10 hol'
upon the terms upon which he entere
into the possession. Shepherd an
, Mitchell as. Cummins, 4, Caldwell pag
f 1853. Taylor's Landlord and Ttnln
49, and AIS.
: 1t is insisted the Court erred in reiusin
the instruction asked for that the pie
in evidence was an admission Of the con
tract, and no evidence was necessary t
prove it. These pleas were filed unde
3 the provisions Of the Code embraced i
f article D. which are not repealed by tn
e act PASSED, 18th February 1860. BY tina
) act, the parties have their option to plea
Q as prescribed in the sections embraced i
/ that article of the Code. The deiendau
1 having adopted the system OF pleadin
t provided by those sections Of the Cod
/ we must be governed by its provisions