Poole v. Engelke

The opinion of the court was delivered by . Dixon, J. Upon the facts stated in the certificate of the Court of Common Pleas, it is evident that on the expiration of the tenant’s May term she became a tenant at sufferance, and, as the landlord did not assent to the continuance of her possession while it lasted, she remained a tenant at sufferance until she left the premises on June 15th. Jackson v. Parkhurst, 5 Johns. 128; Den v. Adams, 7 Halst. 99; Moore v. Moore, 12 Vroom 515; Condon v. Barr, 18 Id. 113. It seems that by the common law, while such a tenant was bound to account for the profits of the land (2 Bl. Com. 151), he was not liable to an action for rent. Flood v. Flood, 1 Allen 217; Condon v. Barr, 18 Vroom 113, 115; 1 Washb. Real Prop. 408. But by the third section of our act concerning landlords and tenants (Gen. Stat., p. 1915), a landlord may in such a ease (Lanning v. Howell, Pen. 256; Chambers v. Ross, [126] 1 Dutcher 293) recover from the tenant “a reasonable satisfaction for the lands, tenements or hereditaments held or occupied by the defendant.” When, in an action for use and occupation, it appears that there was any parol demise, or any agreement (not being by deed) whereon a certain rent was reserved, that rent becomes the exclusive measure of the “ reasonable satisfaction ” to be recovered. Perrine v. Hankinson, 6 Halst. 181, 184; Holmes v. Stockton, 2 Dutcher 93. But of course this rule cannot be applied unless the demise or agreement covers the period of occupation. When the tenant’s possession is outside of the demise or agreement of the parties, the rent fixed for a previous tei’m can be only a circumstance worthy of more or less consideration in arriving at the reasonable satisfaction which the statute gives; and if, as in the present case, the premises have been materially damaged in comparison with the condition for which the rent was stipulated, that rent is of slight value as a criterion. Our conclusion, therefore, is that the Court of Common Pleas should have found for the plantiff such sum as would be a reasonable satisfaction to him for the tenant’s use and occupation of the premises, as they were between the 1st and 15th days of June. In the brief of counsel this case is discussed as if it were affected by the supplement to the “Act concerning landlords and tenants,” approved March 5th, 1874. Gen. Stat., p. 1923. But this statute is applicable only when the premises are leased; neither in letter nor in spirit does it extend to a tenancy which is not in any respect subject to the agreement of the parties. Whether, if the landlord had assented to the tenant’s holding over, so as to convert her into a tenant from month to month at the previous rent, the rent would, by force of the statute, have ceased upon the landlord’s failure to repair, as speedily as possible, the damage done by fire in the prior term, we need not now .decide. The judgment below is reversed, and the cause remitted to the Common Pleas for a new trial.