Harty v. Harris & Keesler , 120 N.C. 408 ( 1897 )

Ordinarily, where a tenant has leased premises for a definite term and holds over after the expiration of the term without any new contract between him and the landlord, a tenancy from year to year is thereby created by presumption of law, but here there was evidence tending to show that when the defendants leased the premises for one year from 1 September, 1895, they declined to make the lease for two years from that date, because they did not expect to be in business that long, and that the agreement was to lease it for one year and as much longer as they should remain in business. It was competent for the parties by such special agreement to rebut the legal presumption which would otherwise have arisen by their holding over after the expiration of the term without any agreement. The evidence should have been submitted to the jury, together with the three prayers for instructions asked by the defendants, which were correct statements of the law applicable. Stedman v. McIntosh, 26 N.C. 291;Humphries v. Humphries, 25 N.C. 363; Kitchen v. Pridgen, 48 N.C. 49;Montgomery v. Willis, 45 Neb. 434, which is almost identical with this case.

The statute of frauds cuts no figure. It is not pleaded, nor is the contract of leasing denied. On the contrary, the party who might plead the statute avers and is relying on the contract. The only controversy is as to its terms and legal effect. Taylor v. Russell, 119 N.C. 30. Besides, if the lease were void under the statute of frauds, the lessors could only recover for the time the premises were occupied. The Code, sec. 1746. (411)

Error.

Cited: Holton v. Andrews, 151 N.C. 341; Rogers v. Lumber Co.,154 N.C. 111; Brown v. Hobbs, ib., 546; Murrill v. Palmer,164 N.C. 53.

(412)