CAROLINE WHITE vs. HENRY G. MAYNARD.

GRAY, J. This is an action by the keeper of a boarding-house against a lodger for breach of an oral contract, by which the plaintiff agreed to provide the defendant and his family of four persons with board, and with three specified rooms as lodgings, in her house, and to light and heat such roomas, from November 26, 1866, to May 1, 1867, at the weekly rate of $75, and the defendant agreed to board and lodge with the plaintiff accordingly.

The defendant at the trial contended that this agreement was for an interest in or concerning lands, within the statute of frauds, and created no more than an estate at will. Gen. Sts. c. 105, § 1, cl. 4; c. 89, § 2. His omission to plead the statute of frauds, not having been objected to at the trial, when the answer might have been amended, cannot now be availed of by the plaintiff Jones v. Sisson, 6 Gray 288. But we are of opinion that the

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ruling of the Superior Court was right, and that the agreement declared on was not for any interest in lands.

The opinions of eminent judges, in cases under English statutes giving the elective franchise to the sole occupiers of houses of a certain value, assume it as unquestionable that a mere lodger in the house of another is not a tenant. In Fludier v. Lombe, Cas. temp. Hardw. 307, Lord Hardwicke held that a man who let rooms to lodgers was still the sole occupier of the house; and said: "A lodger was never considered by any one as an occupier of an house. It is not the common understanding of the word; neither the house, nor even any part of it, can be properly said to be in the tenure or occupation of the lodger." And this definition was cited with approval by Chief Justice Erle in Cook v. Humber, 11 C. B. (N. S.) 33, 46. So in Brewer v. M' Gowen, L. R. 5 C. P. 239, it was held that the owner or tenant of a dwelling-house was not a joint occupier with a lodger to whom he let the exclusive use of a bed room and the joint use of a sitting room; and Mr. Justice Willes, after observing that the lodger "clearly was not a joint occupier of the room in which he took his meals," added: "And with respect to the bed room, he clearly had not an occupation as owner or tenant, but only an occupation as lodger."

In like manner, under the English valuation and tax acts, it has been held that, in order to constitute a tenancy, there must be a putting of a lessee into the exclusive occupation of the apartment, and not a mere admission of a common lodger or inmate, the landlord retaining the legal possession of the whole house. Smith v. St. Michael, 3 E. & E. 383. Stamper v. Overseers of Sunderland, L. R. 3 C. P. 388. The Queen v. St. George's Union, L. R. 7 Q. B. 90.

It was decided by Lord Ellenborough, and admitted by Barons Parke and Alderson, that a covenant, in a lease of a coffee-house in London, not to lease or underlet the premises or any part thereof, was not broken by permitting a man to lodge for a year in a particular room, "of which he had exclusive possession," unless under a distinct demise of the room so as to enable him to maintain trespass. Doe v. Laming, 4 Camp. 73. Greenslade v Tapscott, 1 C., M. & R 55; S. C. 4 Tyrwh. 566.

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An entire floor, or a series of rooms, or even a single room, may doubtless be let for lodgings, so separated from the rest of the house, as to become in fact and in law the separate tenement of the lessee. Newman v . Anderton, 2 B. & P. N. R. 224. Fenn v. Grafton, 2 Bing. N. C. 617; S. C. 3 Scott, 56. Monks v. Dykes, 4 M. & W. 567. Swain v. Mizner, 8 Gray 182. But in such a case, as observed by this court in Swain v. Mizner, he is "a housekeeper, and not a lodger only." In Monks v. Dykes, it was held that a lodger, occupying one room in a house, the woman who owned the house residing therein and keeping the key of the outer door, had no such occupation of the room that he could maintain trespass against a stranger intruding into the room; and Baron Parke said: "I think that neither in law nor in common sense can a man be described as being in possession of a dwelling-house, when he is a mere lodger."

It has indeed been held in two English cases, cited for the defendant, that agreements to take certain apartments in a house as lodgings at a yearly rent were within the statute of frauds. Inman v. Stamp, 1 Stark. 12. Edge v. Strafford, 1 Tyrwh. 293; S. C. 1 C. & J. 391. But there is nothing in either of the reports to show that the rooms were in a boarding-house; and, as suggested by the judges in Wright v. Stavert, 2 E. & E. 721, each appears to have been a case of an agreement, which, if perfected by entry, would have amounted to an actual demise, and would have given the occupant all the possessory rights of a tenant.

In Wright v. Stavert, on the other hand, it was held that an oral agreement to pay a certain sum yearly for the board and lodging of a gentleman and his servant in a boarding-house, terminable by a quarter's notice on either side, was not an agreement for any interest in real estate; and Chief Justice Cockburn said that to hold such a case to be within the statute of frauds would lead to most absurd and inconvenient consequences. The only distinction between that case and the present is that it states one of the terms of the agreement to have been that "the defendant was to have no exclusive right to or interest in any particular rooms, but to be considered simply as a boarder and an inmate."

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But in the similar case of Wilson v. Martin, 1 Denio, 602, it is implied in the statement of the case, and expressed in the opinion, that the agreement, which was held to create no lease, and no interest in lands, was for the use of particular rooms, as well as for board, in the plaintiff's boarding-house; and Mr. Justice Brorson, in delivering judgment, said: "This was nothing more than an agreement for board and lodging, with a designation of the particular rooms which the defendant was to occupy. It was not a contract for the hiring and letting of real estate. When one contracts with the keeper of a hotel or boarding-house for rooms and board, whether for a week or a year, the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate. If he is turned out of the rooms before the time expires, he cannot maintain ejectment; and while he remains, the hotel-keeper cannot get his pay by distraining for rent in arrear."

In the case at bar, the declaration alleged, and the evidence introduced at the trial tended to prove, an ordinary agreement for board and lodging in the plaintiff's boarding-house, by which the plaintiff, as keeper of the boarding-house, retained the legal possession, custody and care of the whole house and of every room therein. The defendant took, by reason of the fact that the rooms in which he and his family were to lodge were specified in the agreement, no greater legal right in those rooms, than he would, if they had not been so specified, have taken in the house. There was no evidence to warrant the inference of an agreement that the defendant should have any such exclusive possession of the rooms specified as would enable him to maintain any action founded on that possession, either against the plaintiff or against a stranger. The only rights of action between the parties are upon the agreement itself. Wright v. Stavert, 2 E. & E. 721, 727. Underwood v. Burrows, 7 C. & P. 26. McCrea v. Marsh, 12 Gray 211.

The instructions requested were therefore rightly refused, and no exception appears to have been taken to the instructions given.

Exceptions overruled.