Arbenz v. Exley

• Decision Date: 25 April 1905
• Citation: 50 S.E. 813,57 W.Va. 580
• Court: West Virginia Supreme Court
• Parties: ARBENZ. v. EXLEY, WATKINS & CO.

57 W.Va. 580

50 S.E. 813

ARBENZ.

v.EXLEY, WATKINS & CO.

Supreme Court of Appeals of West Virginia.

April 25, 1905.

LANDLORD AND TENANT—SURRENDER OF PREMISES—NOTICE—SUFFICIENCY.

1. Under a tenancy from year to year, a letter from the tenants to the landlord saying, "We beg to advise that we have vacated the premises known as west building on 20th street, destroyed by fire Sept 15th, last, and hereby surrender possession of same, " is not a sufficient notice to quit, and does not discharge the tenants from liability thereafter for rent.

2. Under a tenancy from year to year, a letter to the lessors from the lessees, saying that the lessees had vacated and surrendered the premises, though accompanied by such vacation, and a defense by the lessees in court of an action by the lessors for rent for a part of the time after such notice, will not operate to end the tenancy, or discharge the lessees from rent accruing after that involved in the first action.

3. A notice to end a tenancy from year to year must designate the time when the tenancy is to close, either by specifying the day of the close of a current year, or by saying that it is to close at the end of a current year.

[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 384.]

(Syllabus by the Court.)

Error to Circuit Court, Ohio County.

Action by John Arbenz, Sr., against Exley, Watkins & Co. Judgment for defendants, and plaintiff brings error. Reversed.

Hubbard & Hubbard and J. P. Arbenz, for plaintiff in error.

Henry M. Russell, for defendants in error.

BRANNON, P. John Arbenz, Sr., made a written lease, but not under seal, to Exley, Watkins & Co., leasing for a term of five years and three months a brick building, including the vacant parts of certain lots, in the city of Wheeling—the term commencing January 1, 1896, and ending March 31, 1902 —for tie annual rent of $700, commencing April 1, 1896, payable in monthly installments. The lessees took possession on the first week of January, and occupied the prem ises, paying rent monthly. On September 15,

1898, a fire totally destroyed said building. The lessees paid rent for that September, and also for October, but with the rent of October sent a letter, October 31, 1898, to Arbenz, informing him that they "hereby" vacate the premises, and surrender them to him. In November, 1898, Arbenz sued out a distress warrant against said lessees for rent from November 1, 1898, to October 31,

1899, and, the same having been levied, a forthcoming bond was given, and in the proceedings upon it In the circuit court of Ohio county a verdict was rendered for the plaintiff for $502.54, after deducting for failure to repair an engine, and judgment given thereon, and the defendants took a writ of error. The defendants filed a plea denying grounds of attachment, and denying all liability for the rent claimed. The judgment below was affirmed by this court. Those matters will appear in 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957. On August 1, 1903, Arbenz brought assumpsit against Exley, Watkins & Co. to recover rent accruing later than that recovered in the proceeding above mentioned (to recover rent for the period beginning November 1, 1899, and ending December 31, 1902, a period of 38 months, at $700 per year), and the suit resulted in a verdict for only $148.15 (that is, for the 2 months

I of November and December, 1899; the court holding that no recovery could be had after the current year ending that date, on the theory that the tenancy from year to year then closed).

The theory against the right to recover is that a few days after the fire defendants wrote Arbenz the following letter:

"Oct 31st, 1898. Mr. John Arbenz, City-Dear Sir: We beg to advise that we have vacated the premises known as west building on 20th street, destroyed by fire Sept. 15th, last, and hereby surrender possession of same. Tours truly,.Exley, Watkins & Co."

On the former writ of error we held that, for want of a seal to the lease, the term of years named in it was not created, but that it created an estate from year to year, and that said letter did not operate as a notice to quit—to end the tenancy—so as to preclude recovery of rent up to November 1, 1899, the rent in litigation in the former proceeding. We did not go further, as no later rent was involved in that case. The question presented in the second suit is, did the tenancy end December 31, 1899? Did that letter close the tenancy and stop the rent at that date—the close of the current year 1899? For the defendants the contention is that the letter, accompanied by actual vacation of the premises, and coupled with the fact that in the circuit court in April, 1899, Exley, Watkins & Co. made defense in the former proceeding, denying liability for rent, operated as a notice to quit and closed the tenancy December 31, 1899. Take the letter. The question rests mainly on it, It statesthe facts that the lessees had vacated, and then surrendered possession. It does not notify that at the end of a current year in future the tenant would quit, but states present acts or past vacation and surrender. The common law, for centuries, has required, in order that lessor or lessee, under a tenancy from year to year, may close the tenancy of his own motion, that a notice to quit should be given six months before the end of the current year. That period or time of notice must be prior to the close of a year. Code 1899, c. 93, § 5, provides that "a tenancy from year to year may be terminated by either party giving notice in writing to the other, prior to the end of any year, for three months, of his intention to terminate the same." That provision recognizes as still continuing the common-law estate of tenancy from year to year, and the process of terminating it by notice to quit, and changed it only in requiring written notice and fixing a shorter time of notice. Hence it seems that we must appeal to the common law and its mode of notice to test the efficiency of the letter as notice to quit. It does not notify of a future act of quitting, but relies on past vacation and present surrender of possession for the effect of the letter. It does not name a day or time in the future when the tenancy is to end. The profession has always regarded this as a requisite in a notice to quit, I think. 2 Taylor. Landlord & Ten. § 476, says: "Form of. The notice may be given to quit on a particular day, or, in general terms, at the end of the current year of the tenancy, which will expire next after the service of the notice, or in one month after the next rent day. The latter form of expression is generally used where the landlord Is ignorant of the period when the tenancy commenced, and it is preferable even when the commencement of the tenancy is known, as it provides against any misapprehension of the exact day when the tenant entered." 1 Washburn, Real Prop. § 810, says: "Notice. The Time. Whether a longer or shorter time of notice is required, it must, in order to be binding, clearly indicate the time when the tenancy is to expire, and, of course, must be given a sufficient number of days before the time so indicated." The particular question before us is whether that letter is bad as a notice to quit because (1) it is a quitting at its date, not notice of a future quitting at the end of a year; and (2) because it fails to state a time for quitting. Under the above and many other authorities, we are driven to say that it did not end the tenancy at any time. Currier v. Barker, 2 Gray, 224; Steward v. Harding, Id. 335; Hanchet v. Whitney, 1 Vt. 311; Hunter v. Frost. 47 Minn. 1, 49 N. W. 327; Grace v. Michaud, 50 Minn. 139, 52 N. W. 390; People v. Gedney, 15 Hun, 475; Prescott v. Elm, 7 Cush. 346; Phoenixville v. Walters, 147 Pa. 501, 23 Atl. 776; Berner v. Gebhardt, 87 Mo. App. 409; Huntington v. Parkhurst (Mich.) 49 N. W. 597, 24 Am. St Rep. 146; Finkelstein v. Herson, 55 N. J. Law, 217, 26 Atl. 688; Waters v. Williamson, 59 N. J....