
    Oliver Crosby and another vs. Horne & Danz Company.
    January 16, 1891.
    Action for Use and Occupation — Tenancy must be Shown. — Hurley v. Lamoreaux, 29 Minn. 138, followed.
    Same — Tenancy not Shown. — Evidence held to justify a finding that the relation of landlord and tenant did not exist between the parties.
    Action brought in the municipal court of St. Paul, to recover $120 as the reasonable value of defendant’s use and occupation, for three months, of certain premises of plaintiff in that city. Appeal by plaintiffs from a judgment for defendant.
    
      S. P. Crosby, for-appellants.
    
      . Morphy é Gilbert, for respondent.
   Dickinson, J.

This action is for the recovery of rent for the months of November and December, 1888, it being alleged that the defendant during that time occupied the premises, owned by the plaintiffs, by their permission, and as their tenant. This being denied, the trial court found in favor of the defendant upon this issue. That is decisive of the case. The action could not be maintained if the defendant did not sustain the relation of tenant to the plaintiffs. Hurley v. Lamoreaux, 29 Minn. 138, (12 N. W. Rep. 447.) The finding of the court was justified by the evidence. The plaintiffs had leased the premises to other persons for a term extending beyond the period for which rent is here, sought to be recovered, and the plaintiffs admit that such lease was “outstanding” during the period in question. No express contract with the defendant was shown; and although there was evidence going to show that during a part of the months of November and December the defendant occupied the premises by consent of the lessee, that would not create the relation of landlord and tenant between the original lessor and the defendant. The court was justified in finding that no such relation existed.

Judgment affirmed.  