Byxbee v. Blake

Prentice, J. Whatever construction is put upon the somewhat meager facts contained in the finding, in determining the nature of the defendant’s tenancj, the result is the same as to the effect of a holding over after the end of any month. If it be held, as the plaintiffs claim, that the facts—involving as they do the payment and acceptance for more than a year of a monthly rental—raise an implied agreement for a tenancy for monthly periods with no fixed time of termination, the defendant would, by holding over beyond the end of any month, become liable for an additional month’s rent. Bacon v. Brown, 9 Conn. 334; Miller & Co. v. Lampson, 66 id. 432; Anderson v. Prindle, 23 Wend. 616; Steffens v. Earl, 40 N. J. L. 128, 137; Hollis v. Burns, 100 Pa. St. 206, 208 ; Brewer v. Knapp, 1 Pick. 332; Blumenberg v. Myres, 32 Cal. 93; 18 Amer. & Eng. Ency. of Law, 405. If, on the other hand, it be held, as the defendant contends, that there was during the month of December a tenancy under an express agreement for that month, the result would be the same. Stoppelkamp v. Mangeot, 42 Cal. 316; Brewer v. Knapp, 1 Pick. 332; Coffin v. Lunt, 2 id. 70; Bright v. McOuat, 40 Ind. 521, 527 ; Taylor’s Landlord & Tenant, § 57. These results would follow quite apart from the operation of § 2967 of the General Statutes, which therefore need not be considered. The only question left for consideration is whether or not *611 the court erred in ruling that upon the facts the defendant held over after December 31st, up to which time he paid the rent. We think that no other conclusion could have been consistently reached. During the late afternoon of December 31st Blake, who was the defendant’s manager, notified the plaintiffs that the defendant’s goods were nearly out of the store and that they would all be out that evening, and asked what he should do with the keys. The plaintiffs replied that they did not care what he did with them, as they could not and would not accept them. Blake then said that he would like to keep the keys a few days and occupy the store for the purpose of cleaning it up and leaving it in good order. To this statement no reply was made. The keys were kept. There was no attempt to deliver or tender them until five days later. Meantime Blake remained in possession, cleaned out the rubbish, and removed some articles used as trade fixtures. This having been done, Blake, on January 5th, offered to the plaintiffs, the keys which were not received. On the 7th the firm’s sign was taken down. Subsequent history does not concern the result. After December 31st no stock of goods remained in the store and no regular business was there carried on by the defendant. These facts clearly establish (1) that actual possession of the store was withheld from the plaintiffs until January 5th; (2) that no attempt to make formal delivery of possession was ever in fact made before that date ; (3) that the plaintiffs never did or said anything which would amount to a waiver of the actual vacation of the premises ; (4) that the continued possession was the same in outward appearance after as before December 31st, to wit, a possession directed and controlled by Blake; (5) that the plaintiffs never consented to any occupancy without payment of rent; (6) that the plaintiffs never accepted any tenant in substitution for the defendant. The only one of these conclusions calling for discussion is the first, and this needs little. The court has found it as a fact. He has found that Blake was in possession. Although there was no stock of goods remaining and no regular busi *612 ness done, the store clearly was not vacated. Possession thereof was not surrendered to the landlord within the meaning of the law, or the doctrine of any case known to us. Thomas v. Frost, 29 Mich. 836; Haynes v. Aldrich, 133 N. Y. 287. The situation was not one where the tenant had simply failed to remove a few articles. It was one where there continued to be upon the premises the actual bodily presence of an occupant who was not in through or under the plaintiffs. This occupant was none other than the defendant’s manager. If it had been the defendant instead of Blake, and the defendant had been present throughout the events of December 31st and the following days, doing and saying what Blake did and said, there would be little plausibility to a claim that he had either in fact or legal effect vacated the premises. In saying this we place no stress upon the failure to deliver up the keys. Possibly it might be said that that formality had been waived. There certainly had been no waiver of removal. Until there had been such removal the defendant was in no position to take advantage of any advance refusal to receive the keys or acknowledge a surrender. He was bound, as a condition precedent to the exercise of any claim of surrender, to vacate. As long as he occupied, there was no escape, without the consent of the landlord, from a holding over. We therefore have no need to inquire what would have been the result if he had, under the circumstances, not occupied. We are thus brought to the only remaining question, as to the effect of Blake’s acts and occupancy. Were they in legal effect the acts and occupancy of the defendant ? This question admits of only an affirmative answer. Blake was, and from the beginning had been, the manager of the defendant’s business as conducted in the store in question. The defendant, after his purchase of the business, nowhere personally appears in the finding. Blake invariably acts for him. Blake was the defendant’s representative in the removal of the business, the vacation of the store, and its surrender to the landlord. He was the defendant’s representative in the interview of December 31st. This the defendant concedes, *613 since he desires to avail himself of the benefit of Blake’s acts down to a certain point. Then, forsooth, it is contended that Blake suddenly appeared in a new role, and from the moment when he asked to retain the keys assumed the character of a person acting for himself, and no longer represented his principal. Why he should be anxious to personally undertake a duty with respect to the premises which would naturally devolve upon his principal is not suggested. What there is in the finding to support the contention we fail to discover. There is no statement to that effect. There can arise no implication to that effect, unless it arise from the fact that the court in its narrative of the facts, after setting out Blake’s managerial relations, failed in its recital of his acts and words to qualify them in each separate instance by words expressive of his agency. The narrative in the finding follows the natural course. After giving a part of the conversation between Blake and the plaintiffs, the former’s next act is given. Only a most strained construction, and one which leads to most unnatural consequences, can give any color at all to this claim to which the exigencies of the defendant necessarily drive him. These considerations take no account of the unfairness to the plaintiffs of such a construction. Dealing with the defendant’s manager in a matter of the defendant’s business which he had long conducted, they were justified in regarding Blake as acting, as he in fact was, 'for the defendant, and as having full authority to act in the matter in' hand. He cannot he heard to say that Blake’s authority extended only to a certain point. The jugglery of a change of character to the plaintiffs’ harm, without a word of warning to them, or ground for suspicion on their part, cannot be permitted. Clearly Blake, throughout the whole matter in controversy, was in legal, effect the defendant himself. Such being the case, the judgment of the court below, which was for the rent of the store for the month of January, was, upon the finding, justified. There is no error. In this opinion the other judges concurred.