Sampson v. Shaeffer

Citations

• 3 Cal. 196

Syllabus

<p>Indebitatus assumpsit for rent, will not lie in favor of a stranger for the purpose of trying his title; or by one of two litigant parties claiming the land: this action depending, not upon the validity of plaintiff’s title, but upon a contract express or implied.</p> <p>The allegation, that the use and occupation of the lot in question was at the request of defendant, and by the permission of plaintiff, was the allegation of a contract; and this, plaintiff is bound to establish, to enable him to succeed.</p> <p>In an action for use and occupation, the court was asked to instruct the jury “ that it was necessary, to enable the plaintiff to recover, that he should show, that the defendant used and occupied the premises by the permission of the plaintiff; and if the jury believed defendant used and occupied the same against the will of the plaintiff, that they must find a verdict for the defendant;” which the court refused. Held, that in this the court erred.</p> <p>No action for use and occupation will lie, where possession is adverse and tortious, for such possession excludes the idea of a contract, which in all cases of this action, must be either express or implied.</p> <p>Where the defendant held as tenant under J. S. in his lifetime, under whom, as his heir-at-law, the plaintiff claimed as landlord, but the defendant refused to recognize him as such; held, that this refusal terminated the tenancy, and over* weighed the presumption of a contract between him (defendant), and the plaintiff.</p> <p>Under the Practice Act, while the mere forms of proceedings are simplified, all that is substantial in the body of the law is preserved, to give it certainty, and logical conclusiveness as a science.</p>