Clifford v. Smith Meat Co.

Opinion by Mr. Chief Justice McBride. This appeal is from the findings and judgment; the testimony not having been incorporated in the bill of [6] exceptions or brought up by any method. The findings are very meager, but as both parties were satisfied with them, and no additional findings were requested, we have only to determine what judgment should have been rendered upon the facts found. Briefly stated they amount to this: The defendant had a five years ’ lease upon the property at a monthly rental of $150, with a privilege of renewal for five years more at such rental as the lessor would be willing to take from other parties, defendant to have the preference over other parties proposing to lease the property. Another finding is to the effect that at the expiration of defendant’s lease and immediately prior thereto plaintiff had a bona fide offer of $150 per month for a lease of the property, but the finding does not intimate whether this offer was for a five years’ lease, for a less period, or for a single month. The sixth finding is to the effect that at the expiration of the lease the defendant was unwilling to renew at the rental of $150 a month and the plaintiff was not disposed to take less; and by the third finding we are informed that the defendant failed to exercise its option to renew, but remained in possession and occupation of the premises until September 1, 1913, when it abandoned them. There is no finding that during the occupancy any negotiations were pending or any treaty in prospect between plaintiff and defendant. We have only the bare fact that at the expiration of the original lease the plaintiff, with a bona fide offer of $150 a month rental from another party, did not wish to take less from defendant, and that defendant was unwilling to pay that sum, and continued to hold over. It is well-settled law that a tenant for years holding over after the expiration of his lease will be deemed a tenant for another year in the absence of some agreement with his landlord to the contrary. In [7] Tiffany on Landlord and Tenant, Yol. 2, Section 206, the law is thus stated: “It is the duty of a tenant for years, unless he obtains a renewal of the lease, to relinquish the possession of the premises at the end of the term, and his failure so to do is not excused by the fact that the landlord has not demanded the possession or manifested a readiness to receive it. In one state only, it appears, has a different view been asserted, it being there said that the tenant is under an obligation not to leave unoccupied a dwelling leased to him. The duty to relinquish possession applies to the whole premises, and if the tenant fails to relinquish any part, he is regarded as ‘holding over’ as to all. The tenant has no right to retain possession for the sake of cleaning the premises, nor, it seems, for the sake of removing improvements in accordance with a stipulation giving him such right of removal. But not infrequently he is allowed, by the express provisions of the lease, to retain possession until the landlord has paid him for improvements made by him. And occasionally a provision looking towards the possible purchase of the premises by the tenant may have the effect of enabling the latter to retain possession pending the settlement of the price to be paid. The fact that the instrument of lease provides that rent shall be paid by the lessee in case he holds over does not give him any right to hold over. Nor can the tenant justify his failure to relinquish possession by showing that he had permission to remain from "an intending léssee of the reversion, the negotiations between whom and the landlord,- however, did not result in the making of a lease. It has been decided that, when the day of the termination of the tenancy falls on Sunday, the tenant need not relinquish possession until the next day, applying the rule which is ordinarily adopted that, if one has a certain period in which to do a thing, and the last day of the- period is Sunday, he has until the next day for performance. In three states the statute provides that if, in the case of agricultural land, the tenant holds over sixty days without any demand for possession being made upon [8] Mm, lie may hold for another year, as by permission Of the landlord. In another state there is a somewhat similar provision that if proceedings to expel the tenant are not brought within a time named, he may hold over for another term of a period named in the statute.” See also Jones on Landlord and Tenant, §§ 201, 205, and 206. The following authorities cover every phase of this subject: Morgan v. Harrison, 2 Ch. (1907) 137; Be Canada Coal Co., 27 Ont. 151; Isaacs v. Furgeson, 26 N. B. 1; Singer Mfg. Co. v. Sayre, 75 Ala. 270; Belding v. Texas Produce Co., 61 Ark. 377 (33 S. W. 421); Zippar v. Beppy, 15 Colo. 260 (25 Pac. 164); Ridgeway v. Hannum, 29 Ind. App. 124 (64 N. E. 44); Dimock v. Van Bergen, 94 Mass. (12 Allen) 551; Weston v. Weston, 102 Mass. 514; Gardner v. Board of Dakota County Commissioners, 21 Minn. 33; Coatsworth v. Ray, 52 N. Y. Supp. 498; Baylies v. Ingram, 84 App. Div. 360 (82 N. Y. Supp. 891, 181 N. Y. 518, 73 N. E. 1119); Moore v. Harter, 67 Ohio St. 250 (65 N. E. 883); Wilson v. Alexander, 115 Tenn. 125 (88 S. “W. 935); Amsden v. Atwood, 69 Vt. 527 (38 Atl. 263). “Where the holding over is pending negotiations for a new lease, it will not be deemed from year to year, but the other terms of the lease will apply so far as applicable to the situation, including rental at the rate provided in the original lease. To this effect see Morgan v. Harrison, supra; Re Canada Coal Company, supra; Singer Mfg. Co. v. Sayre, supra. This seems a fair and reasonable doctrine, but is not applicable here for the reason that there is no finding that any negotiations were pending during the period between the expiration of the lease and the abandonment of the premises by defendant. It should be remarked that the difference between the parties as indicated by the pleadings was not as to a monthly or yearly tenancy of the [9] property, but as to the compensation to be paid for a renewal for five years. For aught that appears in the pleadings the defendant might have been willing to pay $150 a month for a lease'for a single year, while the plaintiff might have been disinclined to take chances that rents might so augment within a period of five years that a lesser rental for so long a period might in the aggregate turn out to be less than the real rental value of the property for the entire period. So that the fact that the plaintiff had a bona fide offer of $150 a month rental for a year or a month, and the fact that at the particular time the old lease expired the reasonable rental value of the property was less than that, is of little importance. The facts as deduced from the findings still remain that at the expiration of the old lease the parties could not agree on the terms of a renewal, and the defendant without any arrangement as to time or terms continued to hold over. Under these circumstances we- think the defendant became tenant from year to year, and that plaintiff was entitled to the conclusion of law requested and to judgment upon the findings for the sum of $1,100; and a judgment will be here entered accordingly. Modified. Judgment Entered. Mr. Justice Moore, Mr. Justice Bean and Mr. Justice McCamant concur.