Swart v. Western Union Telegraph Co.

Grant, J. (after stating the facts). 1. No claim is made by plaintiffs that any written lease was executed. They claim that there was a parol lease for five years, void under the statute of frauds, but valid for a year, and seek to recover for seven months’ rent. The court held that no verbal lease had been agreed upon, and that, therefore, the defendant was a tenant at sufferance or at will, and that, the rent being payable monthly, plaintiffs were entitled to one month’s rent, and judgment was entered for that amount. The plaintiffs have appealed. It is clear that the verbal negotiations did not embody all the terms of the proposed lease, nor was it contemplated that they should. In the cases upon which plaintiffs’ counsel rely there was no doubt that a parol lease had been agreed upon. The jury and the court were able to definitely establish their terms. See Huntington v. Parkhurst, 87 Mich. 38. It was not enough to constitute a lease that the term rent and time of payment were agreed upon, if the other provisions were contemplated upon which they had not agreed. The court, therefore, correctly held that the minds of the parties had never met, and that there was no parol lease by which their rights could be determined. The tenancy was one at will, terminable upon a month’s notice. Huyser v. Chase, 13 Mich. 98; McIntosh v. Hodges, 110 Mich. 319; Barrett v. Cox, 112 Mich. 220. 2. It is insisted that the occupancy of Mr. Traitel, the ticket agent, after the defendant had .vacated the office, operated as a continuance of the lease, and that it was the duty of the defendant to eject Mr. Traitel. Mr. Traitel was not a tenant, within the technical definition of that [24] term. His occupancy was more in the nature of a boarder at a hotel or boarding house, who, by virtue of his contract of occupancy, obtains no interest in the real estate. Mr. Traitel was duly notified of the cancellation of the arrangement with plaintiffs and to remove. He tendered the rent to plaintiffs, and it was refused. He then tendered it to defendant, which also refused it. Mr. Traitel had no right of occupancy as against plaintiffs. He made no lease with any one. He had simply the right to occupy a chair and desk in the room. Plaintiffs could have removed these at any time. They chose, however, to let him remain. If they did not desire his presence, they should have notified him to leave. Under this record, he remained with their acquiescence. He had no right of occupancy outside of that of the defendant. When its occupancy terminated, his right of occupancy also terminated. Eaton v. Hall, 88 N. Y. Supp. 260; Wilson v. Martin, 1 Denio (N. Y.), 602. Judgment affirmed. Moore, C. J., and MeAlvay, Blair, and Ostrander, JJ., concurred.