
    [Pittsburg,
    September 26, 1823.]
    M‘GUNNAGLE against THORNTON.
    IN ERROR.
    An agent is a competent witness to prove his own authority by parol, to make a parol lease.
    A defendant is liable in assumpsit for use and occupation, who has accepted a parol lease of a house for a year, and undertaken to the landlord to procure possession from a former lessee, notwithstanding, he afterwards refuses to take possession, alleging, that he rented for another person.
    
      Assumpsit, in the Court of Common Pleas of Allegheny county, brought by Joseph Thornton, the plaintiff below, against David M‘Gunnagle, in which a verdict and judgment were had in favour of the plaintiff below, for 122 dollars, 16 cents.
    The plaintiff, on the trial, offered J. Darragh as a witness to prove, that he was verbally authorized by the plaintiff to lease the house in question, from year to year, and did, in pursuance of this authority, let it to the defendant for the term of one year. The defendant objected to the evidence, on the ground, that the witness being himself the agent, was incompetent to prove his own authority. The court, however, admitted the proof, and sealed a bill of exceptions.
    The case made out by the witness was, that the plaintiff had verbally authorized him to rent the house, and receive the rent as his agent. That the defendant called on him, the witness, some time in March, 1816, and inquired what rent he would take for the house, the witness told him he might have it for 180 dollars a year, from the 1st of April ensuing, but that there was then a tenant in the house, who had not been notified to quit, and that the defendant, if he took the house, must run the risk of getting the possession from the tenant. The defendant said he would see the tenant, and afterwards called again on the witness, and told him, he had conversed with the tenant, and that he had promised to leave the house in May: that this would suit him, and that he would take the house one year, at the proposed rent of ISO dollars. The witness then considered the agreement complete. ' He had occasion to be absent from Pittsburg, and on his return, about four months after the agreement, the defendant called on him, and said he would not take the house, as his brother-in-law, captain Johnston, for whom he had leased the house, could not come to Pittsburg, The defendant also stated, that he had called to mention the fact at the witness’ sstore during his absence, and had left word there for him. The witness told the defendant he would look to him for the rent, and advised him not to suffer the house to stand vacant, but to ren it, or to authorize the witness to rent it for him,< but that the defendant said, he did not consider himself interested, as the contract was made for captain Johnston, and would not do anything in the matter, and that he had told witness so at the time the contract was made. The witness, however, was clear, that at the time the contract was made, the defendant did not mention captain Johnston. Darragh further testified, that he believed the house was never occupied by the defendant, who was a young man/ and unmarried, but stood vacant from the time the former tenant left it, till the expiration of that year. That he did not know whether the key had ever been given to the defendant, nor that he had taken possession at any time, but that the witness never received the key from the former tenant. It was among them.
    There was no other testimony on the part of the plaintiff, and the defendant requested the court to charge the jury, that the plaintiff had failed to prove his case as laid in the declaration, inasmuch as there was no evidence of any occupation of the house by the defendant, but the contrary.
    The court, however, charged the jury, that the evidence was sufficient if believed, to sustain the declaration; that the defendant’s undertaking, to run the risk of getting the possession from the tenant, who was in the house at the time of the contract, rendered him the occupant in contemplation of law, and that under the circumstances of the case, an actual occupation was not necessary to entitle the plaintiff to recover in the present form of action, since the tenant might be considered as the locum tenens of the defendant from the first of April.
    
    To this charge the defendant excepted.
    The plaintiff in error assigned the following errors:
    1. That John Darragh, was not a competent witness to prove his own authority.
    2. That the court erred in their charge to the jury.
   The opinion of the court (Tilghman, C. J. being absent,) was delivered by

Duncan, J.

John Darragh, the agent, was a competent witness to prove his own authority to let for one year, notwithstanding some loose dicta to the contrary at Nisi Prius. It is the constant practice to admit agents to be witnesses for their principals, in order tp prove contracts made by them, on the part of the principal, and every person is an agent, within the meaning of the rule, who makes a contract for another. 1 Phill. Evid. 99. 2 Dall. 300. Nor can it make any difference, that it is a contract respecting Jand. It is not here a sale of land, but a lease, which is good, though by parol, by the very letter of the statute of frauds, for three years: but our statute does not make the agreement void: it restricts the operation as to the acquisition of an interest in the land. No title in fee simple can be derived under it, and that was the principle of the decision in Nicholson’s Lessee v. Mifflin. But an jction will lie to recover damages for the non-performance, and parol evidence will be admitted of such agreements, 4 Dall. 152, and that although the agreement was only with an attorney who had but a parol authority. 1 Binn. 450. In the case of Wood’s Lessee v. Galbraith, and Turnbull’s Lessee v. Vance, Gen. Armstrong was admitted as a witness to prove by parol his general agency for the late proprietaries.

This is an action to recover damages on the parol agreement, which may be proved by parol, and the agency proved by parol, and the agent admitted to prove it. It .is a good agreement, and binding on the parties, and passes the interest.

The second error assigned rests on the position, that in an action for the use and occupation, the occupation by the defendant must be proved.

At first, my impression was, that this ought to.be proved, but on further reflection and examination, I am convinced, it is not necessary in every case, and if not indispensable in every case, it ought to be dispensed with in this case. For this was under very special circumstances: the plaintiff in error undertook to obtain the possession from the tenant, and said he had arranged it with the tenant. The possession of the tenant was, in contemplation of law, the possession of the plaintiff in error, from the 1st of April to the 1st of May, because the plaintiff in. error had agreed to pay the rent from the 1st of April, and agreed with the tenant that he should retain the possession until the 1st of May. The landlord had given no notice to quit, but the plaintiff in error and the tenant agreed, that the tenant should continue in possession after the expiration of the lease.

M‘Gunnagle had no locuspenilentisej but if he had, it was toe late to repent three months after the commencement of his lease, and by his own act in not communicating his change of mind to his landlord, he deprived him of any other tenant, and of rent for that year. It is certain, that the plaintiff in error might have occupied the house, that he was not prevented by the landlord, that he deprived the owner of the use and occupation, that the tenant by his agreement with the plaintiff in error, became entitled to hold the premises at least for one year after the expiration of his lease, and thus, in contemplation of law, entered on the possession under M‘Gunnagle, and a.s his sub-tenant: for if it be so, that occupation is necessary for the whole time, the tenant by stepping out a few days before the expiration of the term, would not be liable in this form of action. There ean be no apportionment. If the defendant below had pleaded this matter specially, it would have been no answer to the declaration. The plaintiff declared upon an agreement made by the defendant to pay .the rent during the continuance of the tenancy: he has broken this agreement. His not occupying was his own fault. There is little to be found in our own decisions on the action for use and occupation. It has lately been frequently used, and is a very convenient action, and on principle, without reference to any authorities, my opinion is, that the landlord was entitled to recover, under the special circumstances of this case.

Judgment affirmed.  