
    Lucretia C. Smith, Executrix, etc., Appellant, v. Timothy J. Coe, Respondent.
    (Argued January 22, 1874;
    decided February 3, 1874.)
    The refusal of a trial court to direct a verdict or to nonsuit is not error of law where, although the . evidence be uncontradictory, conflicting inferences may be drawn therefrom; or where conflicting constructions or meanings may fairly be given to the language employed, the facts, not simply the evidence, must be undisputed to make the question one of law.
    This was an action to recover an amount fixed as liquidated damages, in a contract between plaintiff’s testator, Charles H. Smith, and defendant.
    Said Smith being the lessee of certain premises in New York, for a term expiring May 1, 1867, sublet a portion thereof to defendant for the same term. Smith also contracted to renew the lease upon specified terms, provided he obtained a renewal of his own lease; and the defendant, among other things, covenanted as follows : “ And he further agrees that he will not, before June 1st, 1867, * * * negotiate for, or accept or he interested in a/ny lease of the said premises or any part thereof, except under the party of the first part, or his assignees as lessor, or by his consent in writing, under the forfeiture of $10,000, to be paid by the party of the second part to the party of the first part, as liquidated damages,” etc. Smith did not obtain a new lease, but one William P. Earle obtained a lease of a larger portion of the premises ; his term commencing at the expiration of Smith’s, on the 1st May, 1867. Defendant remained on the premises until June, when Earle sublet to him. It was claimed upon the trial that Earle was, in reality, acting on behalf of defendant in procuring a lease. The evidence upon this point was conflicting. The point raised upon appeal was that the court erred in refusing to direct a verdict for plaintiff, because, as claimed by him, the evidence showed conclusively, as matter of law, that the defendant violated the covenant, both in negotiating with Earle for a lease and in becoming interested in a lease. This was predicated upon the evidence of defendant, who testified in substance that he had a conversation with Earle, who applied to him to lease the premises; that defendant replied he would not have anything to say about leasing, and would not pay any rent for May; that he (Earle) could let him stay or turn him out, just as he pleased’; that on the first of June, when he had the right to rent the premises, he would try and rent them, and would pay a good rent. Again, that if there was any way by which he could make a lease on the first of June he would, but he would not make a bargain on or before the first of June. Defendant further testified that he did not negotiate with Earle fór a lease, but refused so to do, and'that he paid no rent for May. The court charged that the occupation of the premises by the defendant during the month of May, with the express or implied consent of Earle, was a breach of the covenant, and that such possession was conclusive as a tenancy under Earle, unless the fact was disproved by evidence showing that defendant was there without Earle’s consent, and was a mere trespasser. The jury rendered a verdict for defendant.
    
      Held, that the refusal to direct a verdict for plaintiff was not error; that by the verdict the jury must have found that defendant did not remain with Earle’s consent, express or implied; that conceding the evidence was capable of a construction that there was a negotiation for a lease for the month of May, and for a longer time, commencing June first, it was also capable of a different construction, to wit, an unqualified refusal to have any relations with Earle in respect to the premises until June, accompanied with an intimation or promise to negotiate after that time, for a term subsequent to May; that a promise to negotiate at a future time is not a negotiation; that negotiation, as used in the contract, means a conversation in arranging the terms of a contemplated contract ; that the position of the defendant after first of May, as found by the jury, was that of a tenant holding over after the expiration of his term; that there was no privity of estate, much less of contract, between defendant and Earle (4 J. R., 150; id., 313), and no tenancy at will, because that requires a consent of the owner (11 Wend., 617); that the presumptions of a renewal or assignment of the lease were rehutted, and that a mere passive wrongful holding over by defendant was not within the prohibitions of the contract; also, held, as above.
    
      Freeman J. Fithicm for the appellant.
    
      Ira Shafer for the respondent.
   Church, Ch. J.,

reads for affirmance.

All concur.

Judgment affirmed.  