Pacificorp Capital, Inc. v. National School Board Ass'n

21 Va. Cir. 175, 1990 Va. Cir. LEXIS 308

Opinion

By JUDGE ALFRED D. SWERSKY

This matter is before the Court on defendant’s Demurrer. I have read the memoranda of counsel and considered the arguments made. The Demurrer must be sustained.

Plaintiff alleges a lease of personalty for various terms but expiring on November 30, 1988, and January 31, 1989; that defendant failed to return the property; continued to use the equipment; failed to pay rent after invoices and created a "holdover tenancy" for one year "by operation of law." The basis of plaintiff’s claim is ex contractu.

Defendant demurs alleging that there is no "holdover tenancy" in a lease for personalty and that the agreement of the parties required a demand from plaintiff for the return of the property at a specified place and no such demand is alleged.

It is well-settled in the law of bailment, which governs this transaction, that a demand for the return of the bailed property is a prerequisite to the maintenance of a suit. See, Michie’s Jurisprudence, Bailments, sect. 15, p. 133. Nothing in plaintiff’s allegations (the lease agreements were not made a part of the pleadings) show a change in this requirement in the agreement between the parties. Plaintiff simply alleges that defendant "made no request for a place to return the equipment." Further, plaintiff has failed to allege a demand and a refusal to surrender the property.

Nothing in the allegations factually supports plaintiff’s claim that a "hold-over tenancy" was created for a term of one year. Plaintiff does not allege an express contract renewing the lease for a specified term. It merely asserts that a contract arises by operation of law renewing the agreements for a period of one year. Such conclusions are insufficient to allege a cause of action. Thus, the Demurrer will be sustained; however, plaintiff will be given leave to amend if it so desires.