Hamilton v. House

WALKER, P. J.

The possession of the land for the use and occupation of which during part of the year 1910 the defendant was sought to be made liable Avas acquired by him from one Scott, Avho held it under a rental contract entered into by him with the plaintiffs. Under the evidence in the case the defendant cannot be held liable as the assignee of that contract,, as the evidence, without conflict, showed that he never agreed to be bound by its terms. On the contrary, he expressly refused to agree to pay the amount of rent which Scott had by that contract promised to pay. For one to become' liable as the assignee of another’s contract it is essential that he accept or assent to an assignment of it to himself. — 4 Cyc. 29; 24 Cyc. 978. In view of the conclusion just stated, it is plain that the plaintiffs could not have been prejudiced by the part of the court’s oral charge excepted to, which stated a hypothesis for holding the defendant liable as an assignee of Scott’s rental contract, as none of the evidence in the case tended to sIioav that such liability existed. It also folIoavs from that conclusion that the court Avas justified in refusing to give the Avritten charges referred to in assignments of error numbered 4 and 8.

Under the evidence it Avas. a question for the jury Avhether the plaintiffs accepted and looked to the defendant as their tenant in the place of Scott, though the defendant did not assent to the terms of Scott’s rental contract. They could not sustain the inconsistent claims that Scott remained their tenant under his contract and that at the same time they accepted the defendant as a substituted tenant under a different contract. The parts of the oral charge bearing upon this inquiry to which exceptions were reserved were free from error.

To support the statutory action for the use and occupation of land, the defendant must either have gone into possession of the land unlaAvfully, thereby subjecting himself to such liability under the fourth subdivision of the statute (Code, § 4753), or he must have been a party to a contract, express or implied, creating between him and the one seeking to hold him so liable the technical relation of landlord and tenant, or a relation importing like rights and duties. — Burgess v. American Mortgage Co. of Scotland, 115 Ala. 468, 22 South. 282; Grady v. Ibach & Co., 94 Ala. 152, 10 South. 287; Mooty v. Doyle, 1 Ala. App. 577, 55 South. 436. There was no evidence tending to show that the defendant Avent into possession of the land unlawfully. His possession Avas acquired from one who, by rental contract Avith the plaintiffs, was entitled to the possession for a term covering the period during which the defendant had the use of the land. The plaintiffs could not sustain the claim that, as to them, the defendant was a trespasser, as by their rental contract with Scott they had divested themselves of the right of possession for the period of the defendant’s use and occupation. — Mooty v. Doyle, supra. The court was justified in refusing to give the written charge referred to in the ninth assignment of error by the fact that that charge improperly assumed the existence of evidence tending to shoAV that the defendant went into the possession of the land unlawfully-

Scott’s rental contract, which is not claimed to have contained a provision against subletting, vested him Avith such a right to the land as to entitle him to let the defendant into the possession of it without the latter becoming the assignee of that contract. The statement of this obvious proposition discloses a fault in each of the refused charges referred to in the fifth and sixth assignments of error.

Affirmed.