Blake v. Preston , 67 Vt. 613 ( 1895 )

TYLER, J.

To maintain the action of assumpsit for use and occupation, the relation of landlord and tenant must have •existed between the parties, evidenced either by an express •or implied contract creating that relation. The law will imply this relation from the fact of the occupancy of the premises with the consent of the owner; but this implication may be rebutted by proof of a contract, or of any other fact that is inconsistent with the existence of that relation. Stacey v. Vt. Cen. R. Co., 32 Vt. 551; Chamberlin v. Donahue, 44 Vt. 57; Moore v. Harvey, 50 Vt. 297.

This relation was not created between the plaintiff and the ■defendant or her husband when the goods were placed in the room. The plaintiff gave his permission that they might remain there until the defendant’s house was completed. But the plaintiff claims that this relation commenced the following May, from the finding that he then told the defendant that he must have the room ; that she replied that he could not have it, and that the plaintiff then told her she would have to pay two and a half dollars a month for it. As the defendant did not engage the room, nor own the goods, nor cause them to be placed in the room,- a tenancy by implication was not created, although she had visited the closet to which the plaintiff and her husband had moved the goods and had locked the door of the room when she left. The same is true in respect to the conversation between the parties in September.- Had these conversations occurred between the plaintiff and the defendant’s husband, who owned the goods, and who made the two agreements for their storage, a case would have been presented like that of Amsden v. Blaisdell, 60 Vt. 386, upon which the plaintiff relies. In each interview with the defendant she repudiated a tenancy and asserted a right (evidently from the agreements made between her husband and the plaintiff) to have the goods remain in the room.

Judgment affirmed.