Hunt v. Bailey

WagNER, Judge, delivered the opinion of the court. The law seems to be well settled that when a tenant for a term of years, or from year to year, holds over and retains possession of the premises after the expiration of term, and without any new agreement or stipulation between the parties, he will be held impliedly to continue in the possession under the terms, conditions and covenants in the original lease — Quinette v. Carpenter, 35 Mo. 502; Finney v. Ahern, decided at this term. It results therefore as a consequence, that in the absence of any new agreement or stipulation, where a holding over is established and the relation of landlord and tenant exists, the law presumes the tenancy to continue according to the terms of the contract which has expired. But where an agreement either express or implied is made for an increasd rent, the larger rent will be payable, although the tenant’s liability is continued on the previous lease. Where a landlord gave notice to a tenant whose term was expiring, that in case he should hold over it would be considered as a taking of the premises for another year at an increased rent, and the tenant made no reply, but continued to occupy the premises, it was decided that the continued occupation was a virtual assent to the terms prescribed in the notice, and created a privity of contract between the parties for the next year after at the increased rent — Despard v. Walbridge, 15 N. Y. 374. 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 and conditions of the lease. The notice in this case was more than three months prior to the expiration of the term, and informed the tenant that if he desired'to retain the premises [267] he could have them at a specified rate, provided he signified his assent by a certain designated day; but if he did not accede to the terms offered and continued to hold, a certain additional rent would be exacted. The tenant made no answer to this notice and held over. When the first quarter had expired and a bill was presented for the increased rent, he objected and tendered the amount according to the terms of the prior contract. 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, in order that the landlord might haVe taken the necessary steps to have acquired the possession and reoccupied the premises, had it been deemed proper to do so. By his continuing in possession and remaining silent, the landlord had the right to construe his silence into an assent or acquiescence and hold him for the increased rent. The tenant cannot be permitted to reap an advantage by remaining silent when it is his duty to speak. The judgment will be affirmed. The other judges concur.