Walker v. Githens

Opinion by Mr. Justice Mitchell, The offer of the appellant was to show that although he had gone into possession under the lease in evidence, yet at the time the rent distrained for accrued he was no longer in under the lease but under a new contract. This was entirely competent. The term under the lease had admittedly expired, but appellant had continued in possession, and the presumption therefore was that he was a tenant from year to year under all the terms of the lease that were aj^plicable. But it was entirely competent for the parties to make a different agreement at any time, and of course for either to prove such new agreement by any proper evidence. The appellant alleged that the lessor had released the joint and several liability of the two tenants for the rent of the whole house, and accepted in place thereof the separate tenancy of each for one half. Even if it be conceded that such an arrangement made during the running of any year would not be binding on the lessor for that year without some new consideration, there can be no question that it would be valid for any subsequent year, and the continuance of the tenant in possession paying the agreed rent would be sufficient consideration. Appellee’s argument is that as the agreement was not binding at the time it was alleged to be made, for want of consideration, it could not be ratified or renewed subsequently. But this argument overlooks the principle that the agreement was not required to be express. It could be made by tacit understanding, and implied as in any other case from the acts of the parties. And even if an express agreement was made, which was not binding in law, but was supposed to be so by the parties and was carried out by them, and then a new year entered upon under the supposition and intention that it was and should [181] be mutually binding, it would be entirely valid. And the jury would be entitled to find that intent from the payment and receipt of rent for one half the house in full of appellant’s debt, and other similar acts. All of the offers of appellant tended to prove the defence set up and should have been admitted. Of course it will be competent for the lessor to show that such receipts if given were for convenience only, but that will raise the issue for the jury. Judgment reversed and venire de novo awarded.