Barron v. Marsh , 63 N.H. 107 ( 1884 )

The action for use and occupation is founded on privity of contract, not on privity of estate. It can only be maintained upon a contract, express or implied, to pay for the occupation. To sustain an action for use and occupation, the relation of landlord and tenant must exist either by express or implied agreement. It does not lie against one who has entered and occupied in defiance of the plaintiff. Wiggin v. Wiggin, 6 N.H. 298; Mussey v. Holt, 24 N.H. 248. The evidence that the bowling-alley was built by the defendant upon the hotel company's land with the understanding that no rent was to be paid, and that no rent had been paid to or demanded by the company, was competent on the question whether the defendant promised to pay rent to the plaintiff. The case finds that the defendant claimed the right to occupy the alley under his contract with the company. Whether the defendant promised to pay rent was a question of fact (Bank v. Getchell,59 N.H. 281), and the jury, under instructions not excepted to, have found that the defendant did not promise.

Judgment for the defendant.

SMITH, J., did not sit: the others concurred.