Amsden v. Atwood

• Decision Date: 16 February 1895
• Citation: 31 A. 448,67 Vt. 289
• Parties: ROLLIN AMSDEN v. JOHN P. ATWOOD
• Court: Vermont Supreme Court

31 A. 448

67 Vt. 289

ROLLIN AMSDEN v. JOHN P. ATWOOD

Supreme Court of Vermont

February 16, 1895

OCTOBER TERM, 1894

General assumpsit. Plea, the general issue and offset. Trial by jury at May term, 1894, Windsor county, THOMPSON, J presiding. The court directed a verdict for the plaintiff. The defendant excepts.

Judgment reversed and cause remanded.

J J. Wilson and J. C. Enright for the defendant.

OPINION

TYLER

It appeared on the trial that the plaintiff was the owner of a water power, with a saw-mill and machinery situated thereon, in Windsor, and that on August 19, 1885, by an indenture, he leased a portion of the same to one Loring Atwood for the term of five years from October 1, 1885, at an annual rent of four hundred dollars, in quarterly payments of one hundred dollars, on the first of January, April, July and October. It was stipulated in the lease that the plaintiff should build a dry-house on the premises, and that the lessee should pay him as rent therefor eight per cent interest on its cost. It was further stipulated that the plaintiff should saw the lessee's logs for his business--the manufacture of chair stock--at a price thereafter to be agreed upon and indorsed on the lease. It was afterwards agreed that the price should be sixty cents an hour, but it was not indorsed.

The lessee entered into the use and occupation of the premises and continued therein until April 1, 1890, when with his consent a new contract was executed by the plaintiff and the defendant as follows:

"That whereas said John Atwood has taken the place of Loring Atwood in a contract or indenture dated the nineteenth day of August, 1885, executed by and between Loring Atwood and the said Amsden, and whereas certain modifications and extensions of said contract or indenture have been mutually agreed upon by and between said Amsden and said John Atwood which it is deemed desirable to put in writing; therefore be it known that the said Amsden, for a valuable consideration, doth hereby extend the lease set forth in said contract or indenture of August 19 for the term of one year from the first day of November, 1890, with a further extension of a term not exceeding five years from the first day of November, A. D. 1891, at the option of said John Atwood, provided he shall give to said Amsden notice in writing at least three months prior to November 1, 1891, of the number of years for which he shall elect to hold and enjoy such extended term; and the said John Atwood, in consideration of the foregoing, doth hereby covenant and agree to and with the said Rollin Amsden that he will pay in equal quarterly instalments of one hundred nine dollars and forty-four cents on the first days of January, April, July and October, for such extended terms as the rent thereof, except so far as said rent may be reduced under the provisions of said indenture of August 19, 1885, and that he will in all respects fulfil all the contracts and agreements of the said Loring Atwood therein contained. It is further mutually agreed and covenanted that if the said John Atwood does not have logs so as to run his chair works from the first day of April to the first day of November, A. D. 1890, then the rent is to be reduced one-half for such time only between said dates as said shortage of stock may exist."

It is clear that the original lease with all its covenants was extended by this contract, excepting so far as the covenants were thereby changed. The only changes made were a slight reduction in the quarterly rent, and a further agreement that the rent should be reduced one-half for such time between April 1 and November 1, 1890, as the defendant was short of logs for his chair works.

The new contract definitely extended the lease to November 1, 1891, with an option in the defendant to have it extended a further term, not exceeding five years from that date, by giving the plaintiff three months previous notice thereof. As the defendant failed to exercise his option the lease terminated by its own limitation on that date, and the defendant remained in possession without right.

The relation of landlord and tenant can exist only by virtue of a contract, express or implied. It may be created by implication of law as well as by express contract. Here the express contract had terminated, and the question is whether the defendant remained as a tenant by implication of law, and if so, what was the nature of his tenancy?

It is clear that after the extended lease terminated the plaintiff might have evicted the defendant. He allowed him to remain without objection until November, 1, 1892, and thence until December 26 of that year, when he gave him a written notice that he regarded him as a tenant by sufferance; that the rent would be increased to six hundred dollars after January 1, 1893; that the charge for sawing logs would be increased, and that as a condition of the defendant's continuing as his tenant he should not employ men who were personally offensive to the plaintiff.

In Blumenberg v. Myres, 32 Cal. 93, it was decided that a tenancy by implication arose, subject to the covenants and conditions of the original lease, where the tenant held over and the landlord received rent after the expiration of the term. This was on the ground that the receipt of the rent was an acknowledgment of a subsisting tenancy. Numerous cases are cited in the valuable notes to this case in 91 Am. Dec. 560, to the effect that a tenant whose term has expired, and who, instead of quitting the premises as he ought to do, remains in possession, holding over, is a wrong doer, and the landlord may treat him either as a trespasser or as a tenant for another year upon the same terms, at his option; Den v. Adams, 12 N.J.L. 99; Rowan v. Lytle, 11 Wend. 616; Adams v. Decker, 11 N.J.L. 84; that this is so, though the tenant has no intention of holding over for a year or of paying the same rent; Hemphill v. Flynn, 2 Pa. 144; Bacon v. Brown, 9 Conn. 334; even where before the expiration of his term he notifies the landlord that he does not intend to keep the premises another year, but nevertheless remains in possession; that his remaining fixes him as a tenant for another year if the landlord chooses to treat him as such.

Wood, on Land and Ten., s. 484, says:

"By holding over after the expiration of the term, the lessee becomes a tenant at suflerance. He does not thereby necessarily become a tenant from year to year, though such a holding, accompanied with payment of rent or other recognition by the lessor of a tenancy, may ripen into an estate of that description; the tenant, in the absence of evidence to the contrary, being bound by the terms of the expired lease, so far as they are applicable to such an estate, without any new bargain to that effect between him and the lessor. ...