Parker's Administrator v. Hollis & Alexander

PETERS, C. J. The learned judge in the court below mistook the law in reference to this case, as laid down in his second charge to the jury. The plaintiff sued as the assignee of Edwards, who, as the proof showed, rented a storehouse and lot in the town of McKinley to the defendants, in December, 1866, by parol, without instrument in writing. The lease was for one year, from the 15th February, 1867, to the 15th February, 1868. The defendants were then in possession of the house and lot, under a former lease, which did not expire until the 15th February, 1867. They occupied the house and lot until the end of the first letting ; and then, without anything more being said about the renting, continued to occupy the premises until some time in May or J une, 1867, when the house was consumed by fire. There was no evidence introduced to show that the defendants took possession of the premises under the contract to rent for 1867-8, or that they gave the landlord notice that they would quit at the expiration of the term under which they held when the new contract was made; and there was no evidence of any notice to quit given by either party at any time. Under this proof, the learned judge very properly instructed the jury, that the agreement for the renting of the premises which, by its terms, was not to be performed within one year from the making thereof, was void. Rev. Code, § 1862; Scoggins v. Blackwell, 36 Ala. 351. This contract, being the only special contract shown by the evidence, was void. It was, therefore, a nullity, and had no force in law whatever. It was as if it had never been. It was nothing. 12 Wallace, 197, 200. This contract, then, could not cut off the plaintiff’s right to recover on the common counts, if the [414] evidence was such as entitled him to recover on the common counts in the absence of any valid special contract whatever. Where a promissory note, with an improper stamp, which rendered it void, has been taken in payment of a debt, the plaintiff will be permitted to resort to the common counts applicable to the debt. 1 Chitty’s Pleadings, 340 ; 1 East, 58; Wilkins v. Reed, 6 Greenl. 220. It is only where there is a valid special contract, embracing the same subject-matter with the common counts, that the plaintiff is confined in his recovery to the special contract, or not allowed to resort to the common counts. 2 Greenl. Ev. § 103. If the defendants held over after the expiration of the first agreement for the occupation of the premises for a year, without any new agreement, a continuation of the former tenancy will be presumed, and the obligation to pay rent may be inferred by the jury, if there is no evidence to dispute such an inference. Harkins v. Pope, 10 Ala. 493; Crommelin v. Thiess & Co. 31 Ala. 412; Rev. Code, § 2607. For the error above pointed out, the judgment of the court below is reversed, and the cause remanded.