City Coal Co. v. Marcus

• Citation: 95 Conn. 454,111 A. 857
• Court: Connecticut Supreme Court
• Decision Date: 22 December 1920
• Parties: CITY COAL CO. v. MARCUS et al.

111 A. 857

95 Conn. 454

CITY COAL CO. v. MARCUS et al.

Supreme Court of Errors of Connecticut.

December 22, 1920

Error from City Court of Hartford; Herbert S. Bullard, Judge.

Summary process by Louis Marcus and others against the City Coal Company. Judgment for plaintiffs, and defendant brings error. No error.

On January 1, 1906, the heirs at law of Louis E. Plimpton deceased, leased to G. U. Kierstead and R. Hackewessel partners in business under the trade-name of the City Coal Company (and apparently since incorporated under that name) certain real property in the city of Hartford forming the subject-matter of the present litigation, for a period of 10 years from said date, at a yearly rental of $144, payable in monthly payments of $12 each. Said lease contained a renewal option in the following words:

" With the option in the parties of the second part their heirs and assigns, to lease said premises upon the terms herein set forth for a further term of ten years from the first day of January, 1916."

At the expiration of the term of 10 years fixed by the lease, no written renewal lease was entered into by the parties, but the lessees continued to occupy the premises with consent of the lessors upon the same terms as to rental provided in the lease, until December 31, 1919. In the latter part of the year 1919, the defendants in error had acquired title to the premises, subject to the leasehold rights of the plaintiff in error. Said lessees thereafter continued to occupy the premises during the month of January, 1920, and on January 6 1920, the defendants in error caused a notice to quit to be served upon the plaintiff in error, which notice was not complied with. The owners of the property, defendants in error in this court, then brought an action of summary process to the city court of Hartford, which rendered judgment in favor of the complainants. The amended complaint in said action alleged an occupation under a lease terminating December 1, 1919, a holding over and refusal to vacate. To this complaint the answer pleaded a general denial, and in a second defense set up the lease and privilege of renewal above referred to, a renewal in fact, and possession under the renewed lease.

The city court of Hartford in deciding said cause held that the original tenancy of the defendant under its lease expired December 31, 1916; that the option to renew therein given to lease the premises for a further period of 10 years was not exercised; that defendant at the expiration of the written lease with the consent of the then landlord held over; " that said holding over constituted a renewal of the original lease for a further term of 10 years, but as such lease was evidenced by the acts of the parties and not by writing, it was within the statute of frauds and became a lease at will and by judicial construction a lease from year to year; " that for successive years from January 1, 1916, the defendant continued to hold over with the consent of their landlords for the time being up to and including the year ending December 31, 1919, and that notice to quit was given as hereinbefore mentioned. The court concluded that section 5099, Gen. Stat. which provides, " No holding over by any lessee, after the expiration of the term of his lease, shall be evidence of any agreement for a further lease," applied to the case before it, and that as no evidence had been introduced showing that the last holding over was with the consent of the plaintiffs, no new letting was thereby created, and rendered judgment as above stated.

The plaintiff in error in the case now before this court made the following assignments of error.

" (1) The court erred in holding that the lease in question was not a continuing one for 20 years.

" (2) The court erred in holding that the lease in question had to be renewed in writing.

" (3) The court erred in holding that the lease in question, and which had been renewed by the acts of the parties, was only a lease at will, and by judicial construction a lease from year to year.

" (4) If said lease was only a lease from year to year, then the court erred in holding that the notice marked ‘ Exhibit B,’ and served after December 31, 1919, to wit, January 6, 1920, was sufficient to terminate the lease from year to year.

" (5) The court erred in finding that a legal notice should not have been served upon the _____ before December 31, 1919."

In the bill of exceptions tendered and allowed in the city court of Hartford the claims of the plaintiffs in error are stated in correspondence with the above assignments of error, and the adverse rulings of the court thereon are set forth. The memorandum of judgment filed in the trial court is made part of the bill of exceptions.

Francis P. Rohrmayer and Abraham S. Bordon, both of Hartford, for plaintiff in error.

Samuel Rosenthal, of Hartford, for defendants in error.

KEELER, J.

Based upon the foregoing assignments of error, the plaintiff in error in this court claims that the written lease in question was in fact a lease for 20 years if the lessee saw fit to so consider it. Or, if this claim be untenable, that a renewal was effected by the acts of the parties for a second period of 10 years, and that the original written lease complied with the requirements of the statute of frauds. Or if the two claims last mentioned are untenable, a tenancy from year to year came into being by operation of law, and that the holding over by the lessee into the month of January, 1920, initiated a new tenancy during the year 1920, and that the notice to quit given January 6, 1920, was inoperative to terminate the tenancy.

Any lease by agreement of the parties may provide for a tenancy beyond the minimum term therein in two well-recognized ways, one by means of a covenant to renew the lease for a certain specified term upon the expiration of the term of the original lease, which covenant contemplates a further lease to be entered into by the parties, the other by means of what are termed agreements for extension. These latter are come into existence by use of a great variety of phrases, such as " the privilege of two more years if desired" or " with right to remain for a further period of _____ if he so elect," or " the privilege of continuing this lease for _____." When such expressions are used the original lease operates as a continuous one, and the holding for a term exceeding the minimum provided in the agreement does not require any additional instrument to give it validity. The statute of frauds is satisfied by the original lease, if it is one required to be in writing. The authority cited by plaintiff in support of its contention that in this case the lease was for a period of 20 years (McAdam, Landlord and Tenant, § 157) relates to agreements for extension, and not to covenants for renewal, as plainly appears from the citations in the note supporting the text.

But the agreement in the case under consideration is clearly not one of the class last considered. It is a covenant to renew, stated in terms in frequent use. It affords the lessee the option " to lease said premises" for a " further term of 10 years." The language clearly contemplates a further agreement, and, as the term stipulated is beyond the period of 1 year, a written agreement. It is not an agreement for further occupation, such as would attach to, and become part of, the original lease, but involves the creation of another term distinct from that provided for in the lease as executed. We held in Renoud v. Daskam, 34 Conn. 512, that in order to secure the benefit of a covenant to renew the lessee must make and signify his election so to do before the expiration of his original term. See, also, Platt v. Cutler, 75 Conn. 185, 52 A. 819.

The trial court has expressly found as a matter of fact that the option of renewal given in the lease was not exercised. The first contention of the plaintiff is without merit.

Passing to the second claim of plaintiff that a new lease for 10 years was created, and that the same was not affected by the statute of frauds, we find authority cited to the point that no written notice was necessary of the lessees' intent to renew, which doubtless is true, but...