Mossy v. Mead

Martin, J., delivered the opinion of the court. The plaintiff claims house rent for five months,due on the [160] first of January, 1830, at one hundred and twenty-five dol- , , lars per month. The defendant admits five months are due, but denies that they are due at one hundred and twenty-five dollars per month, and avers, the rent is at one hundred dollars only, therefore he tenders five hundred dollars, which he avers he has been ever ready to pay. He claims, as assignee of Hudson, a lessee of the plaintiff, for the year 1827, with the faculty in the lessee, to keep the house till the year 1835. There was judgment for the plaintiff, and the defendant appealed. The record shews that the plaintiff introduced his own letter to the defendant, of the third of June, 1829, announcing that the rent of the house would, in future, be at the rate of fifteen hundred dollars a year; a copy of which was admitted to have been received by the defendant, soon after its date. Proof was also made of the demand of the rent, at one hundred and twenty-five dollars, and the defendant’s refusal to pay accordingly. The defendant offered in evidence, alease from the plaintiff to Hudson, and the latter’s assignment thereof to the defendant. The signature to the lease, and assignment, were admitted to be genuine, but the plaintiffs counsel opposed these documents being read, but they were filed. He next produced sixteen receipts, each for one month’s rent at one hundred dollars, and the plaintiff’s signature thereto was admitted. . He next proved a tender of four hundred dollars in December, for four months rent, due on the first day o'f that month, and the plaintiff’s refusal to accept them. He further proved, that during the summer of 1828, the house remained empty, he being absent, but that Wads-worth, his agent, nevertheless, paid the rent monthly, at the rate of one hundred dollars a month, and the tender and refusal of five hundred dollars for the five months rent claimed, were also proved. „ , 0f alease maybe proved by parol, competent witness he^e dkmtereif ted fey a release; The extension The lease of the plaintiff to Hudson is for the year 1827, for twelve hundred dollars, payable monthly. It contains a clause, that “if Hudson should require it, he will have the privilege to remain in the house for the space of seven years longer, he paying the same rent, viz., one hundred dollars per month.” Hudson’s assignment is at the foot of the lease, its date March 1,1828. The whole was registered in a no-taras office on the 10th of June, 1829. At the trial the defendant offered Hudson as a witness, to prove that .he had accepted, from the plaintiff, the extension of the lease for seven years. Hudson had a release of all claims from the defendant. His admission was opposed, and he was rejected on the ground of incompetency, and that no verbal testimony could be given about the lease and assignment. We think the parish judge rerred in rejecting Hudson, r . J ° jo ’ who was offered as a witness to prove that he had required the extension of the lease for seven years. He was .disinterested by the release, and a lease is proveable by parol,— Civ. Code, 2653 — the extension of it must be so. But we do not think the decision of the case requires it to be remanded for Hudson’s testimony. We consider the clause providing for the prolongation of the lease, as a substantial part of the contract, the benefit of which might be invoked by the lessee’s transfer, and we think it was erroneously considered below, as a “mere benevolent promise from the plaintiff toward Hudson personally, not transferrable to another.” But it appears to us, that although Hudson did not avail himself of the faculty of renewing the lease for seven years, he was still a lessee for the year 1828, having leased the premises for the year 1827, for the rent of twelve hundred dollars a year, though payable monthly. He remained in possession till some time in March 1828, and paid the rent up to the first of April; this bound him to pay f1200, in [162] monthly instalments, during the whole yearl828. This the j^g transferree, complied with during the last nine months of that year; at the expiration of it, nothing was said by lessor or lessee. The latter held over for six months in the year 1829; this was a renewal of the lease, or tacit reconduction, on the same terms, that is, for twelve hundred dollar’s a year, payable monthly, till the end of 1829. Early in June of that year, the plaiiitift gave notice to the defendant, the rent would in future be fifteen hundred dollars a year. To this proposition to double the length of time for which the defendant was bound to keep the house, not to the If the lessee the opposition of the expiration^of the lease, there is tion which hinds rent andP entitles premises.1101*1 the increase of the, rent, the defendant never assented. His rights are, therefore, ■ not at all affected by it. He "came the house as the successor of Hudson, who having hired pie ]10USQ for twelvemonths, from the first of January, 1827, and having staid in it several months after the expiration of his year, was bound to keep the premises for a second year; the expiration of which, the defendant did not leave the house, but continued to hold it, and pay rent for one half of the third year, which he therefore became bound to complete, and gave him the rights of a tenant till the expiration of the third year. He has tendered and deposited the rent, to the last day of payment preceeding the inception of the suit. It is therefore ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided, and reversed, and that there be judgment for the defendant, with costs in both courts, saving to the plaintiff his right to the money tendered and deposited.