McBrier v. Marshall

[396] No. 21. Pee Cueiam : When the defendant held over after the expiration of his term, he entered upon a second term of five years. It is true he sets forth in his affidavit, that in September, 1886, he notified the plaintiffs of his intention of vacating the demised premises on January 1,1887. But he did not go. He admits that he continued in possession until January 1, 1888. In the absence of any new agreement, his remaining over would be the equivalent of a renewal of the lease for five years. He does not aver a new agreement to remain for one year only. That he remained with the permission of the plaintiffs was not to the purpose. They might have been entirely willing for him to do so, and to relieve him altogether provided he procured another acceptable tenant in his place. In the absence of any clear averment of a binding agreement by which the contract of March 12, 1881, was abrogated or modified, it was not error in the court below to enter judgment for want of a sufficient affidavit of defence. Judgment affirmed. No. 805. Pee Cueiam : Judgment affirmed.