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49 Ala. 146

Meaher v. Pomeroy

Supreme Court of Alabama

Decided January 15, 1873

Supreme Court of Alabama · decided 1873-01-15

Tried before the Hon. John Elliott. This action was brought by E. H. Pomeroy against J. M. Meaher and T. Meaher, to recover the rent, or (as alleged in the second count) the value of the use and occupation, of a certain lot in Mobile, and seems to have been commenced in the City Court, though the trial was had in the Circuit Court. “ On the trial,” as the bill of exceptions states, “ the plaintiff introduced evidence tending to show that the defendants rented from her, for…

Relies on Crommelin v. Thiess & Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1873-01-15

How this case has been cited

Cited by 11 later decisions — most recently February 1966

1 federal appellate · 2 district · 8 state decisions

301873188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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PECK, C. J.

¶1— The charge of the court below is wrong. If, when the defendants were informed by the plaintiff’s agent that the rent of the lot for the next year would be $500, and that the plaintiff would demand that sum, they had' remained silent and said nothing, and, after the end of their lease for the previous year, had continued to occupy and use the said lot for the next year, the law would have implied a promise on their part to pay that sum. As however, the defendants, at the time, declared to said agent that they would not give that rent, and would not take the lot at that price, no such implication could be made. The law ..never implies a promise against *148the expressed will of a party sought to be charged.1 Here was an express declaration, on the part of the defendants, that they would not take the lot for the next year at the rent demanded, the sum of $500; for this reason, no implication can be made against them to pay that sum.

¶2On the evidence, as it is stated in the bill of exceptions, the defendants were liable to pay, not the rent demanded, $500, nor the sum at which the rent of the previous year was settled, but to pay a reasonable rent — what the use and occupation of the lot was reasonably worth for the period of their occupation. As, on the evidence, the law will not imply a promise to pay the rent demanded ; so, on the other hand, it will raise no presumption against the plaintiff, to receive the sum at which the rent of the previous year was settled. That was, manifestly, a compromise sum, and may not have been the real value of the rent for that year. If the defendants did not occupy the lot for the whole year, then they were liable to pay a reasonable rent for the time they retained the possession. Their holding, after the termination of the lease for the previous year, under the circumstances, was at the will of the plaintiff. She might have put an end to that will at any time by demanding the possession; and if withheld, might have instituted the proceeding in the Revised Code called a real action, for its recovery ; and in that action her recovery would be the possession of the lot, and damages for its use and occupation up to the time of the verdict. Crommelin v. Theiss & Co. 31 Ala. 412.

¶3For the errors in the charge, the judgment must be reversed, and the cause remanded, &c.

¶4 In Chitty on Contracts it is said: “ The law will not imply a promise against the express declarations of the party to he charged, made at the time of the supposed undertaking.” Note 1, page 18.

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