Kites v. Church

Field, J. The plaintiff may recover of the defendant one half of the amount of the tax paid. The Pub. Sts. e. 11, § 18, give the right of action, and, independently of the statute, it is probable that an action would lie, because the tax was a lien upon the land which both tenants were equally bound to discharge. Dickinson v. Williams, 11 Cush. 258. The law regards one half of the money paid to discharge this lien as money paid at the request of the defendant and for his use, and it can be recovered in an action upon an account annexed. Nichols v. Bucknam, 117 Mass. 488. Bowen v. South Building, 137 Mass. 274. It is uncertain from the exceptions whether the court gave or did not give the first and second instructions requested. They plainly became immaterial from the instructions subsequently given. The defendant was in the sole occupation of the store. The court ruled, in effect, that if the defendant orally agreed to pay the plaintiff for the use and occupation of the store, the [589] plaintiff could recover, under the declaration, what the occupation was reasonably worth, from the time when the agreement was made, so long as the defendant occupied under this agreement ; but that no such agreement was to be implied from the fact of the defendant’s occupancy. The defendant, at the close of his argument, requested the court to rule “ that the plaintiff could not recover in this action at all, because this was an action on an account annexed to recover rent, by a tenant in common against her cotenant.” By statute, as well as by usage in this Commonwealth, the word “ rent ” may include the compensation to be paid for the occupation of land by a tenant, whether he holds under a written lease, or at will, or at sufferance, and whether the amount to be paid has been defined by the agreement of the parties, or has been left indefinite. Rice v. Loomis, 139 Mass. 302. If the parties have not agreed upon the amount, the law implies that the tenant has agreed to pay to his landlord what the occupation is reasonably worth. If an oral agreement between two tenants in common, that one, in consideration that he be permitted to have the sole occupation of the land, shall pay to the other whatever the occupation of the other’s share shall reasonably be worth, does not in all respects constitute the ordinary relation of landlord and tenant, still the first item in the account annexed intelligibly described the claim of the plaintiff; and, if the word “ rent ” was not technically appropriate, it is plain that the defendant was not misled by it, and it might well be held, after the trial had proceeded without objection to the final arguments, that the cause of action was described with sufficient certainty. If the defendant had the sole occupation of the store under an express promise to the plaintiff to pay her for the occupation, the plaintiff could maintain an action for use and occupation under this agreement, and therefore could maintain an action on an account annexed; and the ruling of the court was sufficiently favorable to the defendant. Wilbur v. Wilbur, 13 Met. 404. McKay v. Mumford, 10 Wend. 351. Exceptions overruled.