City of San Antonio v. French

• Decision Date: 24 April 1891
• Citation: 16 S.W. 440
• Parties: CITY OF SAN ANTONIO v. FRENCH.
• Court: Texas Supreme Court

16 S.W. 440

CITY OF SAN ANTONIO v. FRENCH.

Supreme Court of Texas.

April 24, 1891.

Appeal from district court, Bexar county.

Oscar Bergstrom and McLeary & King, for appellant. Wm. Aubrey and C. Upson, for appellee.

GAINES, J.

This was an action brought by the appellee to recover of the city of San Antonio the rent of certain rooms for the term of one year beginning on the 1st day of May, 1885. The facts which gave rise to the litigation are as follows: On the 6th day of May, 1879, the city council of the city of San Antonio passed an ordinance authorizing the mayor of the city to enter into a contract with the plaintiff for the lease of certain rooms in a house known as the "French Building," for the use of the city for the term of one year, at a rental of $90 per month, payable in quarterly installments. In pursuance of the authority so conferred, the mayor, on behalf of the city, and the plaintiff for himself, and as agent of his wife, executed a written contract for the lease of the rooms from May 1, 1879, to April 30, 1880, upon the terms recited in the ordinance. The contract, as executed, also contained a stipulation that the city should, at the expiration of the lease, have the right of renewal. The city took possession of the rooms, and its officers continued to occupy and use them until the month of May, 1885, and during the greater part, if not the whole, of that month. The rent appears to have been paid for the occupancy of the premises for the year ending April 30, 1885, as well as for previous years. About the 1st of June, 1885, in pursuance of the formal action of its council, the city vacated the rooms, and some time thereafter the plaintiff took possession; but at the time he did so he gave the city written notice that he took possession merely for the purpose of preserving the property, and not to interfere with its use under the lease, which he claimed to be in force until April 30, 1886. Subsequently the plaintiff let some of the rooms, and recovered, as rent on the same, during the alleged term, the sum of $315. Upon the trial he received a judgment for the full year's rent, less this sum. There was no conflict in the evidence, and the foregoing statement suggests the meritorious question presented by the appeal. The appellee contends that, by reason of the city's holding over after April 30, 1885, it became bound as a tenant for the next ensuing year, subject to the terms of the original contract. That a natural person, under the circumstances, would have been so bound, and therefore liable to pay the rent for the entire year, we think is not to be denied. We understand the doctrine in the courts of this country to be that, if the tenant hold over after the termination of his lease, the landlord has his election to dispossess him, or to treat him as a tenant for the next succeeding year, under the provision of the expressed lease, so far as they are compatible with a yearly holding. The English doctrine is stated as follows by an eminent text-writer: "But though, at the end of the lease, if the tenant holds over, he holds as a tenant at sufferance, still if, when the period for the payment of rent becomes due, he pay the landlord the rent reserved by the expired lease, he becomes a tenant from year to year; the payment of such rent by him, and the receipt of it by his landlord, being considered indicative of their mutual intention to create a yearly tenancy. * * * And it is very remarkable that the yearly tenancy thus raised is governed, not by the simple rules which govern yearly tenancies in the absence of express stipulation, but by the provisions of the expired lease, so far as they are consistent and compatible with a yearly holding." Smith, Landl. & Ten. p. 219. Chancellor Kent lays down the...