Norris v. Morrill

Bartlett, J. If by “ calling for rent or asking for rent in the ordinary way” be meant the use of terms requesting a present payment of it, cases can be conceived where such terms may be employed, and yet no demand be intended or made. If the phrase means calling for the rent as men ordinarily do, it involves a question of fact. We think the statement of facts was not sufficient to enable the court to say that, as matter of law, they necessarily amounted to a demand. If it was understood by the parties that no demand was intended, or if the lessor intended none, there would be no demand, whatever terms were used. Norris v. Morrill, 40 N. H. 401. The reply of the court might have been made fuller and more precise; but, when taken in connection with the prior instructions, which were not objected to, we understand it in substance merely to call the attention of the jury again to the materiality of the intent. Although a demand does not end the tenancy, yet it renders the tenancy liable to be terminated upon a seven days’ notice, if the rent is not paid. Many acts of forfeiture do not of themselves avoid a lease, yet a subsequent unqualified recognition of the continued existence of the tenancy by the landlord, has been held a waiver of the forfeiture. Arnsby v. Woodward, 6 B. & C. 519; Taylor L. & T., sec. 492. But the landlord’s act may be such, or done under such circumstances, as to show that he still insists on his [218] right to terminate the tenancy, and, therefore, it does not follow that a notice to quit would be a waiver of the demand. Taylor L. & T., sec. 486. The instructions of the court upon the question of waiver, when applied to the alleged demands of Morrill, seem sufficiently favorable to the defendant. Norris v. Morrill, 40 N. H. 403. There was evidence upon which the jury might have found a demand made by Emerson, as the defendant’s agent, a few days previous to the notice. If such a demand was made, there is no evidence of a waiver of it before the notice was given on the 12th of May. If that notice was not waived by the defendant, it terminated the tenancy on the 20th of May. Between the 12th and 25th of May, Emerson received the rent accruing up to May 20. As the instructions that this reception of rent “ might be evidence tending to show a waiver, and might be considered as such, in connection with all the other circumstances of the case,” according to the instructions previously given, were in' no way limited, they might have been applied by the jury to the notice of the 12th of May. The mere reception of rent accrued before the time for the termination of the tenancy, is not .a waiver of the notice, or a renewal of the lease ; for the lessor has the right to that absolutely, whether the tenancy is terminated or not. Co. Lit. 211, b; 3 Rep. 64; Jackson v. Sheldon, 5 Cow. 456; Jackson v. Allen, 3 Cow. 230; Hunter v. Osterhoudt, 11 Barb. 33. And perhaps the mere reception of a sum of money by a lessor, to which he is entitled, whether the tenancy exists or not, may of itself have no tendency to prove his assent to its continuance. See Blythe v. Dennett, 16 E. L. & E. 424; Blythe v. Bennett, 13 C. B. 178; 1 Saund. 288, note (x); Taylor L. & T., sec. 497. The act would seem equally consistent with the existence or termination of the tenancy. Currier v. Boston & Maine Railroad, 34 N. H. 506. A different view is suggested in Kimball v. Rowland, 6 Gray 226; but the remark there is a mere dictum, and seems made upon a supposition that the principal object of the statute was to enforce the payment of rent. If that be one object of our statute, it is not the only one, for most of its provisions are directed to enabling the parties to terminate a tenancy. The cases referred to do not support the suggestion ; for, in Tuttle v. Bean, 13 Met. 275, there was also evidence of assent to the continuance of the tenancy; and in Collins v. Canty, 6 Cush. 415, rent accruing after the expiration of the notice was received. But there may be other circumstances in connection with which the payment becomes evidence of a waiver. Tuttle v. Bean, 13 Met. 275. The jury were not instructed that they might consider the reception of the rent, by itself, as evidence of a waiver, but in connection with the other circumstances of the case; and their attention had been already called to the acts and conduct of the parties. Among the circumstances stated, is the fact that the plaintiff remained in possession of the premises until the September following, without interruption, except by the defendant’s entry on the 25th of May. There is no evidence of an express waiver of the notice prior to May 25, but the waiver may be by the mutual understanding of the parties. If, after the 25th, the defendant had admitted that there was such an understanding [219] when the payment was made, this would have been evidence of a waiver. So we think the plaintiff’s continuance in possession, and the defendant’s conduct in allowing it, in connection with the payment, were competent to be submitted to the jury, as tending to show a waiver. Church v. Burghart, 8 Pick. 328; Taylor L. & T., sec. 487. Of the weight of this evidence, under the circumstances of this case, we are not called on to express any opinion. If the views already expressed are correct, the last instructions asked by the defendant were properly refused. There must be Judgment on the verdict.