Lewis v. Bringhurst Reid Co.

Mb.- Justice Chambliss delivered tbe opinion of tbe Court. Tbis appeal is from a judgment in favor of a landlord against a tenant by tbe year, who beld over for twenty-tbree days after tbe expiration of tbe year. Tbe tenant paid rent for tbe twenty-three days be occupied tbe premises, and tbe judgment complained of is for tbe rent accruing for tbe interval between tbe date of bis removal and tbe entry by a new tenant under an agreement between tbe parties litigant. Tbis State bas followed wbat is known as tbe United States rule, under wbicb tbe tenant bolding over is beld strictly, at tbe election of tbe landlord, to liability to another like term. Our early cases to tbis effect are approved in Wilson v. Alexander, 115 Tenn., p. 131, citing Brinkley v. Walcott, 10 Heisk., 22, Hammond v. Dean, 8 Bax., 193, Noel v. McCrory, 7 Cold., 623, and others. Tbis case is sought to be distinguished and liability is resisted on tbe theory (1) that definite notice in writing was given to the landlord, in sufficient time before tbe expiration 'of tbe year, that tbe tenant would not bold over; and, (2) that by posting, on receipt of tbis notice, a “for rent” sign on tbe premises, tbe landlord recog *179 nized and assented to the termination of the contractual relation of landlord and tenant. If the tenant had followed up the giving of this notice by vacating the premises on or before the last day of the year, there can be no doubt that the landlord would have been so bound by the receipt of the notice and his action thereon that he could not have successfully sought to enforce any hold over rights against the tenant. However, we have been cited to no authority and find none which relieves the tenant from liability for another term if, after having given notice of his intention to quit, he nevertheless continues to occupy the property without an express agreement with the landlord that his temporary occupancy for a part of another term shall not operate to bind him for the whole of another term. It is argued that the posting of the “for rent” sign and the fact, inferred from the absence of any contrary showing on the record, that this sign was permitted to remain on the premises into the new term, is sufficient evidence of an election on the part of the landlord against the right, which was otherwise clearly his, to treat the holding over as a renewal of the lease for another term. Conceding that the fact that the sign was permitted to remain is fairly to be inferred, we are not satisfied, under the authorities, that this constituted such an election on the’part of the landlord. The presumption is that the sign was placed on the premises in acceptance of the notice and in contemplation that the premises would be vacated in accordance with its terms. When the tenant elected to violate the express provisions of the notice given, his liability became absolute, in the absence of some affirmative and unequivocal act on the part of the landlord subsequent to the act of the ten *180 ant in bolding over, and we are unable to agree tbat tbe mere failure of tbe landlord to remove tbe “for rent” sign was sucb an act. On this record, before tbe landlord bad any notice tbat tbe tenant would not move out in accordance with tbe terms of tbe notice wbicb be bad given tbe landlord, tbe tenant entered upon a holdover term, and it does not appear tbat tbe-landlord thereafter did any act inconsistent with tbe exercise of tbe option which thereupon accrued to him to bold tbe tenant for another term. Tbe authorities cited in 18 Am. & Eng. Encyc. of Law, 405, and in 35 Corpus Juris, 1030, seem clearly to support this view. Tbe text of the last named authority reads as follows: “Notice by tbe tenant to tbe landlord tbat be does not intend to bold for another term will not protect him, in tbe absence of any assent by or any agreement with tbe landlord if tbe tenant remains in possession.” It is also well established tbat tbe length of time for wbicb tbe tenant bolds over and bis reasons for doing so are immaterial. See authorities above cited and, also, 16 B. C. Li., 1166. It results tbat the judgment must be affirmed.