Choate Rental Co. v. Justice

193 S.E. 817, 212 N.C. 523

Opinion

WinboeNE, J.

We are of opinion, and so bold, there is no error in tbe refusal of tbe court below to grant motion for judgment as of non-suit, or in tbe peremptory instruction.

“By virtue of tbe liberal powers of amendment, tbe court may, before or after judgment, in furtherance of justice . . . amend any pleading, process or proceeding by adding, or striking out, tbe name of any party; and at the bearing of a cause, or between terms, or at a regular term, tbe court may require new parties to be brought in by proper order or sufficient process.” McIntosh, North Carolina Prac. & Proc., 245; C. S., 460 and 547; Walker v. Miller, 139 N. C., 448, 52 S. E., 125; Rushing v. Ashcraft, 211 N. C., 627, 191 S. E., 332; Clevenger v. Grover, ante, 13, 193 S. E., 12.

Conceding that tbe Choate Rental Company is not a necessary party under tbe facts of this case, it is a proper party whose continuance in tbe case was a matter within tbe discretion of tbe court, and not subject to review. McIntosh, P. & P., 245.

Accepting defendant’s version of tbe terms, tbe lease is of uncertain duration and void. Barnes v. Saleeby, 177 N. C., 256, 98 S. E., 708. But if not void, tbe terms as stated by defendant at tbe most constitute a tenancy at will.

In 35 C. J., 1123: “Occupancy of premises under an agreement foí-an uncertain and indefinite term ordinarily creates a tenancy at will; so a tenancy at will arises under an agreement for occupancy until tbe premises are sold, or until tbe premises are rented to a third person, or until tbe lessor is ready to construct new buildings.”

In 35 C. J., 1127: “A tenancy at will may, as tbe definition implies, be terminated at any time by either tbe landlord or tbe tenant.”

A tenant at will if entitled to any notice to quit is entitled only to a reasonable notice. Mauney v. Norvell, 179 N. C., 628, 103 S. E., 372. Tenancy from month to month may be terminated by notice of seven days before tbe end of tbe month. C. S., 2354.

Therefore, applying these principles to tbe facts of the instant case, only one inference can be drawn from tbe evidence.

We have considered all other assignments and find no error.

In view of our decision tbe motion to dismiss is not considered.

No error.