{
  "id": 8658032,
  "name": "W. R. SIMMONS v. EMANUEL JARMAN",
  "name_abbreviation": "Simmons v. Jarman",
  "decision_date": "1898-03-08",
  "docket_number": "",
  "first_page": "195",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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      "cite": "53 N. C., 430",
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  "last_updated": "2023-07-14T18:06:10.161321+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. R. SIMMONS v. EMANUEL JARMAN."
    ],
    "opinions": [
      {
        "text": "Furches, J.:\nThe plaintiff rented the premises in dispute to the defendant at the price of $3 per month, to be paid in advance \u2014 rental to commence on the 1st day of January, 1896, and the defendant was to have the privilege of retaining possession for the year. The defendant retained possession during the year 1896 and until the 22nd of June, 1897, when this proceeding was commenced.\nThis constituted a renting from month to month, commencing on the 1st day of January, 1896. And it is evident that the parties understood it to be by the calendar\u2019 month, as the plaintiff speaks of receiving the rent for the month of \u201cMay etc.\u201d The renting being by the month, when the defendant was allowed to hold over into 1897, and the plaintiff received rent for that year up to and including the month of May, this constituted the defendant a tenant from month to month in the year 1897. Jones v. Wills, 53 N. C., 430.\nThis being so, the defendant was entitled to 14 days notice to quit, ending with the end of the month. Branton v. O\u2019Briant, 93 N. C., 99; Code, Section 1750, which is now, by Chapter 227, Acts 1891, reduced to seven days. The only notice shown to have been given was on the 18th day of May, 1897, and this was \u201cto get out within 30 days.\u201d This notice did not comply with the law. It could not have been for the month of May, as it did not say so, and was not 14 days before the end of that month. It could not apply to the month of May, as the plaintiff received rent for that month, which was a waiver of any rights the plaintiff might have had for that month. Richburg v. Bartley, 44 N. C., 418. It was not in compliance with the law for the month of June, because it did not end with the end of that month. Branton v. O\u2019Briant, supra; Code, Section 1750. In fact this action was commenced before the end of June, to-wit, on the 22nd day of June. The rent was to be paid monthly in advance. This was never done, the payments all being made after the beginning of the month.\nBut there was no condition of forfeiture in the event the rents were not so paid. And the plaintiff had no right to turn the defendant out on account of the nonpayment of rent. Meroney v. Wright, 81 N. C., 390.\nWe have not considered the other interesting question presented, as to the effect of the optional lease, discussed in McAdoo v. Cullum, 86 N. C., 419. There is error and a new trial is awarded.\nError \u2014 New trial.",
        "type": "majority",
        "author": "Furches, J.:"
      }
    ],
    "attorneys": [
      "Mr. W. C. Munroe for plaintiff.",
      "Mr. W. D. Pollock for defendant (appellant)."
    ],
    "corrections": "",
    "head_matter": "W. R. SIMMONS v. EMANUEL JARMAN.\n(Decided March 8, 1898.)\nLandlord and Tenant \u2014 Tenant From Month to Month\u2014 Notice to Quit.\n1. Where a tenant, under a lease for the year 1890 at a specified price per month, payable in advance, held until June, 1897, and the landlord received rent up to June, 1897, Held, that the tenancy was from month to month in 1897.\n2. Where a tenant from month to month, who had paid his rent to June 1st, 1897, received a notice from his landlord on May 18, 1897, \u201cto get out within thirty days;\u201d Held, that such notice was invalid as to May, as the rent had been paid, and as to June because the prescribed time for quitting did not end with the end of the month. (Section 1750 of The Code.)\n3. Where a tenant from month to month agrees to pay monthly in advance but there is no condition of forfeiture in the event the rent is not so paid, the 'landlord cannot turn the tenant out for nonpayment of rent.\nSummary proceedings in ejectment commenced before a Justice of the Peace and heard on defendant\u2019s appeal before Robinson, J\u201e at September Term, 1897, of Wayne Superior Court.\nOn the trial W. R. Simmons, witness for the plaintiff, testified as follows: \u2014 \u201cI am the agent of the plaintiff, who resides in the State of Tennessee, and I rented the premises in dispute to the defendant by the month, at $6 per month; rent payable monthly cash in advance, beginning January 1, 1896, with the privilege of a year. The house being in need of repairs it was agreed that the defendant should make the repairs, which should cost $10, and that the same should be credited on the rent, it was the understanding, the repairs being necessary, that they should be made as soon as the defendant took possession. The first payment in money to me by the defendant, on account of said rent, was $2, the balance due for the month of April, and which was paid on the 3d day of May, 1896,. and for which I gave a receipt. He afterwards paid $3 per month rent, at irregular intervals. The rent of each month he paid for the year 1896, and continued on into the year 1897, under the original contract; then he wanted the house fixed. I wrote to plaintiff, who declined to make the repairs; said he had already made an allowance of $10 for repairs. The defendant thereupon said he would not pay the rent until the house was repaired. He owed me two months\u2019 rent, and on May 18,. 1897, I told him he must surrender the premises in thirty (30) days. On June 2nd he paid me $3 rent for the month of May. On June 15th he tendered rent for the month of June, which I refused to accept, and brought suit. \u201d\nOn cross-examination, the witness said: \u201cI cannot mention a month, in which the defendant paid his rent in advance. From my receipts to him, shown to me,. the earliest date upon which the rent was paid was the tenth day of the month in which the rent was due.\u201d\nFloyd Walker, a witness for the plaintiff, testified as follows. \u2014 \u201cThe defendant told me that he had rented the house, rent payable monthly cash in advance, with privilege of a year.\u201d\nThe defendant introduced no testimony, but demurred to the evidence offered by the plaintiff, on the grounds:\n1. That the evidence showed no stipulation for reentry.\n2. That the tender of the rent for the month of June barred any further action.\n3. That if. there bad been a right of re-entry, same may be waived by failure to demand payment of rent in advance.\nHis Honor overruled the demurrer, to which the defendant excepted, and submitted the issue to the jury under instructions.\nThere was a verdict for the plaintiff and defendant-appealed.\nMr. W. C. Munroe for plaintiff.\nMr. W. D. Pollock for defendant (appellant)."
  },
  "file_name": "0195-01",
  "first_page_order": 227,
  "last_page_order": 231
}