Cooper v. Joy

• Decision Date: 21 May 1895
• Citation: 63 N.W. 414,105 Mich. 374
• Court: Michigan Supreme Court
• Parties: COOPER v. JOY ET AL.

63 N.W. 414

105 Mich. 374

COOPER v. JOY ET AL.

Supreme Court of Michigan

May 21, 1895

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by David M. Cooper against James Joy and others for rent. From a judgment for defendants, plaintiff brings error. Affirmed.

William J. Gray, for appellant.

Dickinson Thurber & Stevenson, for appellees.

McGRATH C.J.

Defendants were tenants under a lease for the term of three years from and after May 1, 1886. The lease contained a provision that "the said parties of the second part may at their option, have an extension of this lease for three years additional, upon giving notice thereof to said party of the first part at least four months previous to May 1 1889." Defendants occupied the store until April 1 1891, but the four-months notice provided for in the lease was not given, nor was any notice given. Plaintiff sues to recover the rent for the unexpired portion of the second three-year term. The sole question in the case is whether the holding over was in and of itself sufficient to extend the lease for the new term, or sufficient evidence of the intention of the lessees so to do. The rule seems to be that if the lease does not provide that notice shall be given by the tenant of his election, merely remaining in possession after his term has expired is sufficient, and binds both him and the landlord for the additional term. But, if notice be stipulated for, it must be given. Wood, Landl. & Ten. (1st Ed.) p. 678; Id. (2d Ed.) p. 947; Tayl. Landl. & Ten. � 332, p. 383. Delashman v. Berry, 20 Mich. 292, was a case where no notice was required, and this court held that the holding over was, in and of itself, sufficient notice of election. See Clark v. Merrill, 51 N.H. 415. There are cases which hold that, where the provision for an extension is at an increased rental, the holding over, and the payment for a time of the increased rental, is sufficient evidence of an election. Kramer v. Cook, 7 Gray, 550; Stone v. Stamping Co. (Mass.) 29 N.E. 623; Long v. Stafford, 103 N.Y. 274, 8 N.E. 522. In the Kramer Case the court say: "The provision in the lease is not a mere covenant of the plaintiff for renewal. No formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease in futuro, requiring only the lapse of the preceding term and the election of the defendant to become a lease in praesenti. All that is necessary to its validity is the fact of election. Even if notice of the lessee's intent to continue might be insisted upon by the lessor, he clearly might waive it; and he clearly did waive it by the acceptance of the increased rent on the 1st days of April and July,-an increase which could be predicated only upon such election by the lessee. Indeed, after the payment of the rent on July 1st, and the receipt given therefor, and in the absence of evidence to control their effect, the question of the defendant's election to continue, and of the plaintiff's assent thereto, would not seem to be an open one." In the Stone Case the lease not only provided that the renewal should be at an increased rental, but that, "if the lessee holds over, the rent shall be at the original rate." The lessee not only continued in possession, but...