Marmiche v. Roumieu

Lea, J. The facts of this case are correctly stated by the District Judge. “ The plaintiff claims $1,500 for the rent of a store, to be paid monthly, on the ground that the defendant rented the store from him by the year. The defendant claims that he is merely a monthly tenant, and denies any liability for rent except when in the premises. The facts show that the defendant first occupied the house under a written lease, that when the lease was about to expire, plaintiff asked defendant if he would continue for another year. The defendant was desirous of doing so, but under different conditions, to which the plaintiff refused to accede. The defendant continued to occupy the premises, and was notified by the plaintiff that he considered the lease renewed. To this defendant replied that he would leave the premises at the end of the month. He continued in the premises and notified plaintiff from month to month that he would leave.” To this statement we may add that both before and after the expiration of the written lease, the defendant positively refused to accede to the terms proposed by the lessor, who, in his turn, insisted upon his original proposition, and would consent to no other. Under these circumstances it is clear that there was no contract and the relation of lessor and lessee cannot be created otherwise than by a contract. If the defendant was a trespasser, which is not pretended ,the plaintiff had his remedy by the summary process for expelling a tenant, together with his claim for damages, if any were sustained ; but this is a suit upon an alleged contract, to which the defendant not only never agreed, but against which he always protested. The tacit reconduction of the lease of property not predial does not extend beyond one month, which will be presumed to be continued from month to month, unless terminated by one of the parties, in accordance with the provisions of Article 2656 of the Civil Code. See Geheebe, et als v. Stanby, 1st Annual, p. 17, also Bowles v. Lyon, 6th Rob. 264. This suit was brought, before the expiration of the first month, no exception was taken to the prematurity of the suit, and the evidence shows that the defendant continued to occupy the premises-helonging to the plaintiff up to the month of April inclusive. The defendant is, therefore, bound for six months rent, say 750 dollars. It is, therefore, ordered that the judgment appealed from he reversed, and proceeding to render such judgment as in our opinion should have been rendered : It is ordered that the plaintiff, B. G. Marmiche, do have and recover of the defendant, F, Roumieu, the sum of ($750) seven hundred and fifty dollars and costs of suit in the District Court, for the rent of his store up to [478] the 1st day of May, 1855, without prejudice to the plaintiff’s rights, if any he have, to sue for and recover such damages as he may have sustained by a failure to rent his store for the residue of the year ending 31st October, 1855, in consequence of the alleged occupation of the same by the defendant without his consent. It is further ordered that the plaintiff and appellee pay the- costs of this appeal.