Seligson v. Klyman

Stacy, C. J.

For a number of years the defendant leased a store from plaintiff at a rental of $75.00 per month. In lieu of notice to quit, the defendant agreed to vacate the premises on 1 June, 1946. This he omitted to do, and as plaintiff had arranged to take possession on that date, he immediately instituted this summary proceeding in ejectment before a justice of the peace to obtain possession of his property, not for the nonpayment of rent, as none was then due, but for one of the causes enumerated in G.

S., 42-26, the defendant being a “tenant or lessee, who holds over and continues in possession of the demised premises . . . without the permission of the landlord, and after demand made for its surrender.”

Vanderford v. Foreman, 129 N. C., 217 , 39 S. E., 839 .

*349 Plaintiff elected not to claim “damages for tbe occupation of tbe premises since tbe cessation of tbe estate of tbe lessee,” G. S., 42-28, as be is authorized to do without prejudice to bis right to sue for same in another action, and this no doubt for tbe reason plaintiff did not wish to limit bis claim to an amount within tbe jurisdiction of a justice of tbe peace. See G. S., 42-28; 42-30; 42-32;

Simons v. Lebrun, 219 N. C., 42 , 12 S. E. (2d), 644 , and cases there cited.

Therefore, when it was made to appear in tbe Superior Court that defendant bad surrendered possession of tbe store to the plaintiff, in tbe absence of a request to amend, nothing remained in tbe ease but tbe costs.

Rental Co. v. Justice, 212 N. C., 523 , 193 S. E., 817 .

Tbe provisions of G. S., 42-33, have no application to tbe facts of the instant record. Tbe plaintiff is not seeking to recover tbe possession of tbe demised premises “upon a forfeiture for tbe nonpayment of rent.” There is no allegation of any rent in arrears.

Whether G. S., 42-32, as amended by Ch. 796, Session Laws 1945, can be invoked in favor of tbe plaintiff is not presented and will not be determined in advance of a ruling on tbe matter in tbe court below. See Stephenson v. Watson, 226 N. C., 742 .

Tbe extent of defendant’s liability for withholding possession from and after 1 June, 1946, is yet to be determined, in another action perhaps. Tbe law is well settled that from a lessee who wrongfully bolds over, tbe landlord is not only entitled to obtain possession of bis property, but also to recover indemnity for its wrongful detention.

McGuinn v. McLain, 225 N. C., 750 , 36 S. E. (2d), 377 ;

Allen v. Taylor, 96 N. C., 37 , 1 S. E., 462 ; Anno. A. L. R., 386. This is not necessarily tbe stipulated rent in a lease for a time prior thereto.

Martin v. Clegg, 163 N. C., 528 , 79 S. E., 1105 ;

Credle v. Ayers, 126 N. C., 11 , 35 S. E., 128 , 48 L. R. A., 751. “Where possession of leased premises is unlawfully withheld, damages are recoverable against tbe party unlawfully withholding tbe same, which may fairly and reasonably be considered as tbe natural and proximate result thereof, and which damages, special or otherwise, tbe party in default, in tbe light of tbe circumstances, should reasonably have known would result to tbe party entitled to possession, from bis acts in withholding tbe premises”—Syllabus, Lewis v. Welch, etc., Feed Co., 96 W. Va., 694 , 123 S. E., 801 , 39 A. L. R., 383.

Indemnity or compensation, rather than rent, would seem to be tbe proper measure of recovery.

Murtland v. English, 214 Pa., 325 , 63 Atl., 882 , 112 Am. St. Rep., 747 , 6 Ann. Cas., 339.

Tbe dismissal of tbe proceeding will be reversed, tbe judgment vacated and tbe cause remanded for judgment awarding tbe plaintiff bis costs.

Reversed and remanded.