Green v. Kroeger

Bond, J. Plaintiff leased to defendants a building in this city on the second day of December, 1889, for a term ending December 31, 1894, at a yearly rental of $1,200, payable monthly in advance. The lease contained a clause providing for a redelivery of the building, fire only excepted, in as good order and condition as it could be maintained by reasonable use, and obligating the lessees, their heirs or assigns, “to pay the lessor double rent for all such time as they should hold over the.premises after expiration of the letting either by limitation or forfeiture.” The lessees by themselves and their subtenants occupied the building during the full term of the lease and until the nineteenth of January, 1895, thereafter, when they vacated it, haying first tendered the lessor rent for nineteen days at the rate of $200 per month, which was refused, and leaving at his place of business the key to the lower part of the building, the door leading from the first to the second story of said building having been closed up during its occupancy under the lease. On the third or fourth day of January, 1895, the lessor presented defendants a bill for that rent at the rate specified in the lease, and subsequently on February 1, 1895, demanded rent for that month at the rate mentioned in the lease. [624] Neither of these bills were paid, wherefore plaintiff began two actions before a justice for their collection. In the first suit the justice gave judgment for plaintiff for the amount tendered and paid to the constable by defendants for their occupancy of the building for nineteen days. In the second suit judgment was rendered for defendants. Plaintiff appealed both cases to the circuit court, where, by agreement, they were tried together without a jury. The court gave judgment in the first action for plaintiff for the amount tendered with costs accruing prior to the tender, and rendered judgment for defendant in the second action. Prom these judgments plaintiff appealed to this court. The first point urged for reversal is that the court overlooked the right of plaintiff as lessor to fix the character of the “holding over” by his lessees, by demanding a monthly rent after the expiration of the term. That this may be done where the status of the parties after the termination of the lease is neither fixed by its terms, nor by a new agreement, express or implied, as to their subsequent relations, is well supported by the authorities cited. 1 Wood on Landlord and Tenant [2 Ed], pp. 37, 125; 2 Taylor on Landlord and Tenant [8 Ed.], p. 24, sec. 22. The facts in the case at bar very clearly exempt it from the application of .this principle of law. In this case the lease by express terms provides for the rights of the parties in the contingency of a holding over after its expiration. By the clause to that effect it is distinctly provided that the continued occupancy of the premises after the end of the term shall entitle the lessor to recover double rent from the occupiers “for all such time.” This clause did not deprive the lessor of his option to retake the premises at the expiration of the lease, but in case of his failure so to do or to make a new agreement with the lessees, it deprived him of the power to do [625] more than recover double rent for the time he should permit the lessees to hold over after the expiration of the lease. This was announced in a case almost identical as to its material facts with the one at bar. Deaver v. Randall, 5 Mo. App. 297. In that case the, clause of the lease under review obligated the lessees to pay “double rent for every day they * * * shall hold * * * said tenants after the expiration of this lease.” No new agreement was made between the parties after the expiration of the lease in that case. The court held that the above clause entitled the lessees, upon payment of double rent for the time of their “holding over,” to surrender the premises; that they were not monthly tenants, nor required to give the statutory notice prescribed for such when occupying buildings in cities. E. S. 1889, sec. 6371. That the clause in the lease in the present case is equivalent in meaning to the one construed in the above cited case, is apparent from an examination of the language of each. As the record in this case does not disclose any agreement, express or implied, between the parties for a new tenancy after the expiration of the lease, their rights must be governed by the rule announced in the former decision of this court. For this reason the first assignment of error made by appellant is overruled. The second point insisted upon by appellant is that by giving notice of their intention to terminate their “holding over” at the end of March, 1895, defendants acknowledged their tenancy from month to month. This point would be well taken except for the language of the alleged notice. Without setting it out, it is enough to say that it expressly disclaimed and denied any tenancy from month to month on part of the defendants, and merely proposed to make a surrender of the premises as such, at the time fixed, in the event [626] the court should decide, contrary to their contention, that defendants occupied the status of such tenants. It is plain that a notice so conditioned can not be construed into an acknowledgment of tenancy. Since the condition upon which it was to take effect has not happened, it was at most a mere precautionary measure, probably of no legal efficacy in any event. Plaintiff also insists that when defendants vacated the premises on the nineteenth of January, 1895, they only left at his office the key to the lower part of the building, the communication of which to the upper part had been closed during the term, and that this was an incomplete surrender. There is no merit in this point. The evidence is clear that plaintiff took charge of the renting of the entire building after it was vacated by the defendants and their subtenants. Whether the closure of communication between the two stories might subject the defendants to an action on their covenants in the lease, need not be decided. It is clear that it did not in point of fact prevent a surrender of the entire building. The judgment in this case will be affirmed. All concur; Judge Rombaueb in the result.