Stafford v. . Yale

Stacy, C. J. After the defendant’s renewed motion for judgment of nonsuit had been overruled and exception duly entered, the case was submitted to the jury to ascertain whether the lease was from month to month or for a term of three years. The issue was clearly stated in the following instructions: “You, gentlemen of the jury, understand what the differences between these parties are. That is to say, their differences in what kind of contract it was, and it is the duty of the jury to determine what kind of rental contract exists between these parties. If you find by the greater weight of the evidence with the plaintiff’s contention relating to these issues, you will answer it Yes. If you fail so to find, you will answer it No.” The jury answered simply that the plaintiffs were entitled to the possession of their property, which, under the charge, means that the lease was on “a monthly rental basis.” This alone is not enough. In the first place, there is no evidence to support the conclusion that the term had ended, whatever its length, and that the defendant was a tenant in possession holding over. G-. S., 42-26. Secondly, there has been *222 no failure to pay the rent when due, and there is neither allegation nor proof to show when the term began or when the monthly rentals became due. The defendant entered into possession on the 18th of the month. The notice to quit designated the time as “on or before the 1st day of March, 1947.” Gr. S., 42-14. The record is silent as to whether this was sufficient to terminate the tenancy. Simmons v. Jarman, 122 N. C., 195, 29 S. E., 332; Cherry v. Whitehurst, 216 N. C., 340, 4 S. E. (2d), 900. A diligent search of the transcript fails to reveal any evidence to support the claim as set out in the plaintiff’s oath. A fatal variance between allegation and proof usually results in a dismissal of the proceeding, as this amounts to a total failure of proof on the declaration or the cause alleged. Sycamore Mills v. Veneer Co., ante, 115; S. v. Harbert, 185 N. C., 760, 118 S. E., 6. “Proof without allegation is as unavailing as allegation without proof.” Talley v. Granite Quarries Co., 174 N. C., 445, 93 S. E., 995; S. v. Law, 227 N. C., 103, 40 S. E. (2d), 699. There was error in overruling the defendant’s motion for judgment as in case of nonsuit after all the evidence on both sides was in. The defendant has the benefit of the exception on appeal. Gr. S., 1-183. It will be allowed here. Reversed.