Galloway v. Kerby

McAllister, J. We are of opinion that upon the agreed statement of facts, the plaintiff was not entitled to recover rent of the defendant, upon the basis of seventy-five ‘dollars per month. Such a right of recovery could, under the circumstances, arise only upon privity of contract; and mutual assent is the fundamuital principle of all contracts. That this principle applies in the cases of alleged liability on the part of tenants to pay increased rent, in accordance with the terms of such a notice, given by the landlord to the tenant, as that of April 12th, 1880, in this case, has been assumed in every well considered case in which the question has been presented and decided. In such cases, assent on the part of the tenant to the landlord’s proposal for increased rent, has been regarded as indispensable to the creation of privity of contract. But the continuing in occupation by the tenant' without objection or reply after such a notice has been received, is held to be tantamount to an express assent. Roberts v. Hayward, 3 C. & P. 432. In this ease such a notice had been given by the landlord, and the tenant continued in without making any reply. The court, Best, Ch. J., said: “ His silence on the subject is tantamount to his saying, ‘I will continue in on the terms of your proposal.’ ” So in Despard v. Walbridge, 15 N. Y. 374. A notice similar to that in the case at bar was given just before the expiration of the tenant’s term, and the latter continued to hold, without making any reply to it. The court, by Selden, J., said: “ Here was a direct proposition from the owner of the reversion to the tenant in possession, for a renewal of his lease, and this proposition is met by a continued occupation, without other reply. This, I think, laid the foundation for an implied contract. It was in law a virtual assent to the terms proposed in the notice.” In Higgins v. Haligan, 46 Ill. 173, the court, by Breese, Ch. J., after stating the fact of the notice said: “ and he not objecting thereto, but continued in the possession, no argument or authority is needed to show the extent of his liability, under such circumstances.. The inference is irresistible that he was content to hold at the increased rent, and his assent thereto will be implied.” In Hunt v. Bailey, 39 Missouri, 257, the court cited the case of Despard v. Walbridge, 15 N. Y. supra, with approval, and said: “ If the tenant manifests his dissent from the terms proposed for increased rent, then no privity of contract will be created, for the increased rent, and if he holds over, it will be considered on'the terms of the lease by which he originally gained possession. In such case, the remedy of the landlord would be ousting the tenant from the possession under the statute, if he objected to a continuance of the occupation according to the terms of the lease.” It was also laid down as a rule in that case, that if the tenant objected to the terms increasing the rent, and did not intend to pay accordingly, it was his duty to manifest his dissent within a reasonable time. These views seem to us to be based upon sound principles. It is, however-, insisted on the part of the appellant, that the case of Griffin v. Knisely, 75 Ill. 411, holds to a different doctrine. It may be conceded that some of the language employed by the learned judge who prepared the opinion in that case, if considered independently of the facts of the case, might be regarded as in conflict with the foregoing cases. The facts of that case were materially different from those in the case at bar. There, although the tenant did object before the giving of the notice to entering into a contract for the entire dock, a part of wliiph he had been occupying, at the rate of rent per front foot which the landlord proposed to charge for it; yet, after the attempt by the landlord to have the tenant take such a lease, had failed, the notice was given; and to that the tenant made no reply, but continued in o ccupation of the. part he had occupied the previous year. Under the facts the case was precisely within the doctrine of all the cases above cited; and what the opinion says in regard to the inoperative effect of the tenant’s objections, has reference solely to objections made before the notice was given. The decision was placed upon the principle of the case of Higgins v. Halligan, 46 Ill. 173, to which we have above referred. In the case at bar the landlord, in his first notice of March 10, 1880, as to the increased rent, stated that he presumed the tenant would not wish to keep the premises at that rate. April 12th, however, he gives the tenant another notice to the same effect, as to the increase of the rent, to which proposal the defendant on the very next day notified plaintiff of his dissent. Then in a conversation between them, April 27,1880, the defendant again expressed his dissent in the clearest terms. The' case shows beyond doubt that at this last date the plaintiff knew that the defendant would not accede to his proposal of $75 per month as rent. Then what did the plaintiff do? Why, early the next morning he carne and nailed a board upon the house, with a notice on it that the premises were for rent. He so advertised them. Upon this, the defendant then, on the 28th of April, submitted to plaintiff a proposition of his own by letter, which plaintiff then received, that he would pay an advance of 20 per cent, if plaintiff would make certain specified repairs. The plaintiff forebore making any reply to this proposition, and defendant held over after the first of May, and May 8 addressed the plaintiff again on the subject of that proposition, requesting him to say whether he was going to make the repairs, and if not, to give him reasonable notice to leave. To this plaintiff, May 11, replied by saying that he had ordered roofers to repair the roof, but that defendant was bound for rent at $75 per month; and that if he did not pay it for the current month, by the end of the week, he should proceed to collect it. Defendant replied the next day, denying plaintiff’s assertion that he was bound for $75 per month, as claimed. The facts of the agreed case, in our opinion, repel the inference of any assent on the part of the defendant to the terms of said notices, at any time after they were given; they also repel any inference that either party intended that the holding should be upon the terms of the written lease, as respected rent. The case wholly fails to show anything upon the actual rental value of the premises, except that rents had advanced from ten to fifteen per cent., as appears by defendant’s admissions. The plaintiff was at liberty, at any time before his proposal to rent at $75 per month had ripened into a contract by defendant’s assent thereto, to withdraw the samé. Payne v. Cave, 3 Term, R. 148; Routledge v. Grant, 4 Bing. 653. We are of opinion that the act of the plaintiff, in nailing upon the house, the board with the notice on it, as above stated, immediately upon the heels off defendant’s refusal, on the 27th April, to accede to his proposal, was evidence tending to show that he had withdrawn such proposal, and that he intended, by such act, at such a time, that defendant should so understand it. The defendant admitted to plaintiff, by his letters, that there had been an advance in rents of from, ten to fifteen per cent. The defendant had paid upon his use and occupation, only $198. The plaintiff being, in our view of the case, entitled to recover for use and occupation, upon the basis, of the actual rental value, we fix that value at fifteen per cent, upon the rate provided in the lease for the previous year. Upon that basis, we think there was justly due the plaintiff below the sum of nine dollars and fifty cents. That being the case, the judgment of the court below will be reversed, and judgment entered in this court in favor of appellant and against appellee for that sum. Reversed.