Baxter v. Maull

Opinion by Linn, J., This is a suit to recover rent. Judgment was entered against plaintiff for want of a sufficient statement of claim. He avers that defendant occupied his house two years under a written lease and then moved without giving notice; that the second year’s occupation was “with the consent of the plaintiff,” but that her removal was without having given “three months’ written notice prior to October 8, 1915, the expiration of the then current term, of her intention to terminate the lease and remove from the premises”; and that the failure to give such notice rendered her liable for a third year’s rent. Accordingly, after a third year, plaintiff brought this suit for another year’s rent less what he received for part of the year from another tenant obtained by him. The premises were demised “for the term of one year from the eighth day of October, A. D. 1913, at the monthly rent of seventy-five dollars......” The lease also provided: “Seventh. If the lessee shall continue in the occupation of the said demised premises after the expiration of the term hereby created with the consent of [170] the lessor, it shall be deemed a renewal of this lease, and of all the covenants, terms and conditions herein contained for the term of another year, and so on from year to year until the lease is terminated by either party hereto giving to the other not less than three months’ written notice for removal prior to the expiration of the then current term; provided, however, that if the lessor shall have given three months’ written notice prior to the expiration of any term of intention to change the conditions of this lease, and the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice, for a further term of one year and until this lease is terminated by notice, or otherwise, as herein provided. Leaving notice upon the premises shall be a sufficient service thereof.” Notice of intention to remove at the end of the first year was unnecessary: MacGregor v. Rawle, 57 Pa. 184; was such notice necessary to terminate the lease at the end of the second year? The averment is that “after the expiration of the term” of one year first specified in the lease, the tenant remained a second year pursuant to plaintiff’s consent that defendant should so remain “for the term of another year.” Plaintiff now contends that this second definite term of one year was not based upon that consent, but was based on the failure to terminate the relation of landlord and tenant “by either party hereto giving to the other not less than three months’ written notice for removal prior to the expiration of the then current term” (supra). We agree with the learned court below that notice was not necessary prior to the end of the second term and that the case is ruled by Ashhurst v. Phonograph Co., 166 Pa. 357, where premises were demised “for the term of one year” with the provision, “It is hereby further agreed that if the lessee shall hold over after the expiration of the term hereby created, with the consent of the [171] lessors, it shall he deemed and taken to be a renewal of this lease and all terms, conditions, covenants and provisos herein contained, for the term of another year and so on if the possession is still continued with like consent, after the expiration of this additional year, from year to year, unless either party shall give three months’ previous notice to the other of an intention to determine the tenancy at the end of any year. Provided also, that if the lessors in their option so elect, the failure of the lessee to give said notice of its desire to determine said tenancy shall be deemed and taken to be such a renewal.” The following interpretation of that provision by the Supreme Court is controlling here: “The real question therefore is whether the provision in the lease in regard to notice of an intention to determine the tenancy applies to each year of the lessee’s occupancy of the demised premises or is limited to his possession of them after the expiration of the additional year mentioned therein. This provision is somewhat obscure and confusing, but there is no room in it for a construction which dispenses with notice the first year and requires it to be given in order to terminate the tenancy at the end of the second or ‘additional year.’ If the lessors could have dispossessed the lessee at the end of the first year without having given three months’ previous notice of their intention to determine the tenancy at that time, we see no good reason why they could not have done so at the end of the second year, and if the rights and obligations of the parties were mutual in this respect, it follows that the lessee was at liberty to surrender the premises at the expiration of either year without having given such notice, or incurring further liability under the lease. It appears to be conceded by the appellants that notice was not necessary to determine the tenancy at the end of the first year, and so far we agree with them. The second term of one year was not founded upon a failure to give the three months’ notice before the expiration of the preceding term, but upon a holding over by the lessee [172] with the consent of the lessors. It seems to ns that the rights and obligations of the parties were the same the second year as the first, and that the provision in respect to notice is applicable only to tenancies arising from a holding over after the expiration of the ‘additional year.’ It being conceded that the notice clause was not operative the first year, the contention based on its concluding words ‘any year’ loses its significance and becomes unimportant. This construction gives effect to the words ‘after the expiration of this additional year,’ while the construction which makes the notice clause applicable to that year ignores them.” Judgment affirmed.