POINDEXTER v. CALL, N.C., Judgment, Law, casemine.com

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Attorney(S)

Holton Holton for plaintiff. Jones Clement for defendant.

Judges

WALKER, J.

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Smart Summary

Factual and Procedural Background

This case arises from a summary proceeding in ejectment initiated by the plaintiff, a landlord, against the defendant, his tenant. The dispute concerns the termination of the tenancy and whether proper notice was given. The defendant appealed from a decision rendered by Webb, J., at the May 1921 term in Forsyth County.

Legal Issues Presented

Whether a tenancy can be terminated by a verbal notice to quit given by the landlord.
Which party bears the burden of proof to establish that the tenancy has ended at the commencement of the ejectment action.

Arguments of the Parties

Defendant's Arguments

The defendant contended that the notice to terminate the lease should have been in writing, relying on Pell's Revisal, sec. 778.
The defendant argued that the tenancy was from year to year, requiring thirty days' notice to terminate, and thus challenged the sufficiency of the landlord’s notice.
The defendant asserted that the burden of proof to show expiration of the tenancy should not rest on him but on the plaintiff throughout the trial.

Plaintiff's Arguments

The plaintiff maintained that a verbal notice to terminate the lease was sufficient under the law.
The plaintiff asserted that the tenancy was from month to month, not year to year, and that the burden of proof to establish expiration of the tenancy rested on him as the party initiating the ejectment action.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vincent v. Corbin, 85 N.C. 108-111	Verbal notice to tenant by landlord is sufficient to terminate tenancy.	The court relied on this precedent to reject the defendant’s contention that notice must be in writing, holding oral notice sufficient.
Garris v. Harrington, 167 N.C. 86	The burden of proof rests on the plaintiff who initiates the action to establish expiration of tenancy.	Supported the court’s holding that plaintiff bore the burden of proving that the tenancy had ended at the time of suit.
Tillotson v. Fulp, 172 N.C. 499	Same as above regarding burden of proof in landlord-tenant disputes.	Confirmed that the burden remains with the plaintiff throughout the trial.
Walker v. Carpenter, 144 N.C. 675	Burden of proof lies with the party asserting the affirmative of an issue, regardless of nominal plaintiff or defendant status.	The court used this to explain that the defendant’s second issue, asserting a year-to-year tenancy, was an affirmative defense requiring proof, but was ultimately immaterial.
McKeel v. Holloman, 163 N.C. 135	Reinforces the principle that the party asserting the affirmative must prove it.	Supported the court's analysis of burden of proof allocation.
Cotton v. Mfg. Co., 142 N.C. 531	Jury instructions must be considered in light of the theory of the trial, evidence, and parties’ contentions.	The court applied this to interpret the jury instructions and verdict as consistent with the plaintiff’s theory and evidence.
Stein v. Levins, 205 N.C. 306	This precedent was cited but the specific rule or application was not detailed in the opinion.	This citation was noted without elaboration.
Benner v. Phipps, 214 N.C. 16	This precedent was cited but the specific rule or application was not detailed in the opinion.	This citation was noted without elaboration.

Court's Reasoning and Analysis

The court analyzed two main questions. First, it determined that an oral notice to terminate a tenancy is sufficient under the law, distinguishing the case from statutory provisions requiring written notice in other contexts. The court relied on Vincent v. Corbin to support this conclusion.

Second, the court addressed the burden of proof regarding whether the tenancy had expired at the time the ejectment action commenced. It found that only one issue was necessary: whether the tenancy had expired. The court held that this burden rested solely on the plaintiff, who initiated the suit, citing Garris v. Harrington and Tillotson v. Fulp.

The trial court had submitted two issues to the jury—one regarding a month-to-month tenancy and the other a year-to-year tenancy. The court found submission of the second issue unnecessary and considered it surplusage. Although the burden of proof for the second issue was incorrectly placed on the defendant, this was harmless error because the jury’s verdict on the first issue clearly favored the plaintiff.

The court further explained that the defendant’s contention that the tenancy was year-to-year was essentially a denial of the plaintiff’s month-to-month claim and thus part of the general issue. The court cited Walker v. Carpenter and McKeel v. Holloman to clarify that the burden of proof lies with the party asserting the affirmative of an issue.

Finally, the court emphasized that jury instructions must be read in context with the trial’s theory and evidence, referencing Cotton v. Mfg. Co., and concluded that the jury understood the real issue and intended to find for the plaintiff.

Holding and Implications

No error.

The court affirmed the judgment in favor of the plaintiff, holding that a verbal notice to terminate a month-to-month tenancy is sufficient and that the plaintiff bears the burden of proof to establish expiration of the tenancy at the time of commencement of ejectment proceedings. The submission of two issues to the jury was unnecessary, but the error was harmless as the verdict clearly favored the plaintiff. This decision directly resolves the parties’ dispute but does not establish new legal precedent beyond confirming existing principles regarding notice and burden of proof in landlord-tenant ejectment actions.

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H. D. POINDEXTER v. C. R. CALL.

1. Ejectment — Landlord and Tenant — Notice to Tenant.

A verbal notice to terminate a lease given by the landlord, in conformity with the statute, is sufficient.

2. Same — Term of Lease — Issue.

Where the controversy in a summary proceeding in ejectment between landlord and tenant, is whether the contract is by the month or by the year, as to the landlord's notice to terminate it, only one issue is required, as to the expiration of the lease at the time of the commencement of the action, with the burden of the issue on the plaintiff.

3. Same — Immaterial Issues — Burden of Proof — Appeal and Error — Harmless Error.

Where two issues are submitted to the jury in the landlord's action of ejectment, one as to the expiration of the term of the lease, as being by the month as plaintiff claimed; or by the year, as the defendant claimed, the second issue will be regarded as surplusage on appeal, and an instruction placing the burden of proof on this last issue on the defendant will be regarded as harmless error, it appearing that the jury, in answering the first issue in the affirmative, understood and intended to render their verdict in favor of the plaintiff.

4. Instructions — Theory of Trial — Evidence — Context.

Instructions to the jury are considered with reference to the theory upon which the case is tried, and the evidence and contentions of the parties, and are construed with the context.

WALKER, J.

This is a summary proceeding in ejectment, brought by the plaintiff, as landlord, against the defendant, as his tenant.

There are only two questions presented for our consideration:

1. Can a tenancy be terminated by a verbal notice to quit?

2. Upon which party rests the burden to prove that the tenancy has come to an end?

First. The notice in this case was oral. The defendant contends that it should have been in writing, and for this he relies on Pell's Revisal, sec. 778, but that section applies to a different class of notices. In Vincent v. Corbin, 85 N.C. 108-111, it was held that a verbal notice to the tenant by his landlord is sufficient. This disposes of the first exception.

Second. As to this exception, it is necessary to state that the court below submitted two issues to the jury, as follows:

1. Was the tenancy existing between the plaintiff and the defendant from month to month, and, if so, when did such tenancy expire? The jury answered this issue "Yes, 1 January, 1921."

2. Was the tenancy between the plaintiff and the defendant from year to year; if so, when did the same expire? The jury answered this issue "No."

This action to eject the defendant was commenced in February, 1921. The court placed the burden as to the first issue upon the plaintiff, and as to the second issue upon the defendant. Submitting two issues was unnecessary. The defendant's counsel, Messrs. Jones and Clement, correctly insisted here, in their (368) brief and in their argument, that in no event could the burden of proof be placed upon the defendant Call, for that the burden of proof was upon the plaintiff from the beginning to the end of the trial. There was but one question for the jury to pass upon, and that was, "Had the defendant's term, or lease, expired when this action was commenced?" The burden of the issue could not rest on both plaintiff and defendant. The plaintiff became the actor at the institution of the suit, which placed the burden of proof on him, citing Garris v. Harrington, 167 N.C. 86; Tillotson v. Fulp, 172 N.C. 499. This, as we have said, is very true. There was only one issue, and that was the one stated by the learned counsel for the defendant, but that one was submitted by the first of the issues, and the judge properly placed the burden as to it upon the plaintiff.

The contention of the defendant that the tenancy was one from year to year, and required thirty days notice to end it, was not a separate or distinct defense, but was in the nature of a denial of plaintiff's allegation that it was one from month to month, and was involved in the general issue or traverse of plaintiff's allegation. If plaintiff failed to establish his contention that the tenancy was one from month to month, he failed to do what the law required him to do, and the verdict and judgment should have been against him. Defendant, though, should have stood his ground upon the general issue, simply denying the plaintiff's allegation. The form of the second issue may have placed the burden upon the defendant, as he was required to prove the affirmative of it. The Court said in Walker v. Carpenter, 144 N.C. 675: "However they may be arrayed on the docket, it is a fundamental rule of evidence that the burden of proof is on the party who substantially asserts the affirmative of the issue, whether he be nominally plaintiff or defendant. . . . The first rule laid down in the books on evidence is to the effect that the issue must be proved by the party who states an affirmative and not by the party who states the negative." To the same effect is McKeel v. Holloman, 163 N.C. 135. But we regard the second issue as entirely immaterial and without any proper significance in the case. The jury having found, under the evidence and the charge, that the tenancy was one from month to month, and that it expired on 1 January, 1921, the plaintiff was entitled to recover. Having found that the tenancy was from month to month, in response to the first issue, the jury would hardly have found, in response to the second, that it was a tenancy from year to year. They evidently found, and intended to find, for the plaintiff. While there was a formal error in the respect indicated, it was harmless, as the case turned out, and was not, therefore, prejudicial.

It was held in Cotton v. Mfg. Co., 142 N.C. 531, that (369) instructions to the jury are to be considered with reference to the theory upon which the case is tried, and with reference to the evidence and contentions of the parties. And Chief Justice Ruffin once said that the language of the judge is to be read with reference to the evidence and the point disputed on the trial, and of course is to be construed with the context.

When thus considered, there is no room for doubt that the jury fully understood the real and only issue, decided with the plaintiff, and intended their verdict to be for him.

No error.

Cited: Stein v. Levins, 205 N.C. 306; Benner v. Phipps, 214 N.C. 16.

POINDEXTER v. CALL