Sycamore Mills, Inc. v. Hervey Veneer Co.

44 S.E.2d 531, 228 N.C. 115, 1947 N.C. LEXIS 553

• Court: Supreme Court of North Carolina
• Decided: October 29, 1947
• Status: Published

Opinion

Stacy, C. J.

It seems that on the hearing in the Superior Court, the plaintiffs asserted that the lease was terminated in July, 1944, because the quarterly rental of $15.00 was not paid in advance at that time. The defendants, on the other hand, claimed there was no forfeiture of the lease as the rent was tendered within the first thirty days of the quarter. The lessee’s contention that the rent was payable at any time during the quarter, seems to accord with the terms of the lease, and also with the ante litem motam practical interpretation of the parties. Jones v. Realty Co., 226 N. C., 303, 37 S. E. (2d), 906; Cole v. Fibre Co., 200 N. C., 484, 157 S. E., 857. The rent was to begin on 1 January, 1940, and became due “the first quarter due April 1st, 1940, and quarterly thereafter.”

Moreover, as we understand the record, the plaintiffs herein — proceeding instituted 23 October, 1945 — seek to dispossess their tenant and to recover rent “from 1st day of January, 1945, to present.” This would seem to be a waiver of any alleged breach in July, 1944, six months earlier, if not already waived by plaintiff’s letter of 26 December, 1944, in which it was stated “that unless you meet with me, or otherwise arrange another lease agreement, I will repossess the lots on January 1, 1945, or shortly thereafter.”

At any rate, so far as we are able to discover, the record appears barren of any evidence to support the claim set out in the complaint. A fatal variance between allegation and proof suggests a nonsuit, as it amounts to a total failure of proof on the declaration or the cause alleged. Whichard v. Lipe, 221 N. C., 53, 19 S. E. (2d), 14, and cases cited. It is so ordered.

Reversed.