Tobie v. Smith , 28 Me. 106 ( 1848 )

The opinion of the Court was drawn up by

Whitman C. J.

As this case comes before us upon exceptions to the decision of the court below, we have only to look to what was there decided, and excepted to. The action is for use and occupation. It is not pretended that the defendant ever actually occupied the tenement; but his parents did, and were-in the occupation of it at the time when he agreed with the plaintiff, as testified to by the witness, Harris. If he had actually entered into possession, or had been the original lessee, by parol, and had underlet it to his parents, he would have been responsible in this form of action for the rent. Bull v. Sibbs, 8 T. R. 327. But there is no ground for pretending that he ever had any agency in putting his parents into possession, or that he ever underlet the tenement to them.

The error in the decision of the court below, consisted in putting the cause to the jury upon the hypothesis, that there was evidence upon which they would be authorized to find, that the defendant was, by his agents, his parents, a tenant to the plaintiff; which the evidence, even on the part of the plaintiff, did not tend to show; but rather the contrary; for Harris, the witness, mainly and solely relied upon as to the original undertaking on the part of the defendant, testified that the defendant’s parents, as he understood, were, at the time, in the occupation of the premises; and that the plaintiff was unwilling they should continue to occupy the same, unless the defendant would be responsible for the rent. There was no pretence in form of a letting to the defendant; and, therefore, none that he could have entered and ejected the occupants. The whole extent of the undertaking on his part was, that he would pay the subsequently accruing rent. Such an agreement could nbt make him liable in an action for use and occupation ; and such should have been the instruction to the jury by the court.

Whether the defendant was or not a guarantor, that the rent should be paid, need not be considered in this form of action ; and the maintenance of it was not put upon any such ground. And the case of Blake v. Parlin, 22 Maine R. 395, may be an authority decisively against the maintenance of an action upon the guaranty. Exceptions sustained.