Gerhart Realty Company v. Brecht
| Decision Date | 13 December 1904 |
| Parties | GERHART REALTY COMPANY, Respondent, v. BRECHT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James R. Kinealy Judge.
AFFIRMED.
Judgment affirmed.
Geo. W Lubke and Geo. W. Lubke, Jr., for appellant.
(1) No notice of his intention to claim a renewal of the lease in question having been given by the defendant to the plaintiff the renewal did not take effect, notwithstanding defendant remained in possession. Beller v. Robinson, 50 Mich. 264; Cooper v. Joy, 105 Mich. 375; Bradford v. Patton, 108 Mass. 153. A covenant to renew does not give the tenant the right to retain possession after the end of the original term. Finney v. Cist, 34 Mo. 303. (2) The quitting of the premises by defendant and the lease of the same thereafter by plaintiff to Cavanaugh for a term beyond that which defendant was bound to keep them, had he availed himself of his right to renew the lease, constituted an eviction of the defendant by plaintiff and operated as a surrender of the premises by operation of law, which discharged defendant entirely on his covenant to pay rent, if any such covenant was then in force. Huling v. Roll, 43 Mo.App. 234; Matthews v. Tobbener, 39 Mo. 115; Hudson v. Jones, 79 Mo. 496; Holmes v. Guion, 44 Mo. 164; Duffy v. Day, 42 Mo.App. 638; Churchill v. Lammars, 60 Mo.App. 234; Robertson v. Winslow, 99 Mo.App. 546, 74 S.W. 442; Clemens v. Bloomfield, 19 Mo. 118; Koenig v. Brewery Co., 38 Mo.App. 18; Squire v. Brewery Co., 90 Mo.App. 462.
Charles R. Macfarlane for respondent.
(1) Holding over by lessee operates as an election to extend the term. 18 Am. & Eng. Ency. of Law (2 Ed.), p. 690, citing Montgomery v. Hamilton Co., 76 Ind. 362; Bright v. McQuat, 40 Ind. 521; Hoiley v. Young, 66 Maine 520; Blumenberg v. Myres, 32 Cal. 93; Stone v. St. Louis Stamping Co., 155 Mass. 267; Kramer v. Cook, 7 Gray (Mass.) 550; Delashman v. Berry, 20 Mich. 292; Schroeder v. Gemeinder, 10 Nev. 355; Clarke v. Merrill, 51 New H. 415; Mershon v. Williams, 62 N. J. L. 779; Crouch v. Trimby Shoe Co., 83 Hun (N.Y.) 276; Clendenning v. Lindner, (N.Y. Super. Ct. Gen. T.) 9 Misc. 682; Voege v. Ronalds, 83 Hun 114; McBrier v. Marshall, 126 Pa. 390; Harding v. Seeley, 148 Pa. 20; Bateman v. Maddox, 86 Texas 546. In Missouri it is well-settled law. Ins. Co. v. Banks, 71 Mo. 58; Curtis v. Sturgis, 64 Mo.App. 535; Lewis v. Perry, 149 Mo. 256, 50 S.W. 821. (2) Lessee should have surrendered possession of the premises, in order to escape damages. Ins. Co. v. Bank, 71 Mo. 58. (3) Plaintiff did not release defendant from defendant's obligation to pay damages resulting from breach of the lease. Prentice v. Warne, 10 Mo. 601; Goodfellow v. Noble, 25 Mo. 60; Livermore v. Eddy's Admr., 33 Mo. 546; Huling v. Roll, 43 Mo.App. 234.
This is an action on a contract for the letting of a dwelling-house in the city of St. Louis. The house was let by written contract May 6, 1902, for the term of one year ending May 31, 1903, at a rental of forty dollars a month. The lease contained this clause: "The privilege is hereby given said lessee (Brecht) to renew this lease for an additional term of two years from expiration at the rate of $ 600 per annum or $ 50 per month, subject to the same covenants and conditions as herein contained, provided said lessee fulfills all conditions and stipulations herein promptly and satisfactorily, and shall have given thirty days' notice in advance before the expiration of this lease of his intention to renew the same." Brecht occupied the premises under that arrangement for the year called for and remained in possession during the months of June and July, 1903; that is, two months after the original lease had expired. He gave no written notice of an intention to renew it. On June 13th, he paid $ 40 for that month; but one of the respondent's officers called him by telephone demanding ten dollars more and telling him that under the contract the rent was fifty dollars per month after June 1st. Brecht said he declined to pay the ten dollars at first, but when threatened with a suit did pay it. This payment was made June 27th. Three days later, on June 30th, he wrote the respondent's agent that he would vacate the premises in thirty days. The agent replied the next day, refusing to accept the notice, protesting it was in violation of the renewal privilege of June 1st, 1903, at $ 50 per month, declaring Brecht had elected to avail himself of the renewal privilege by holding over, that respondent refused to terminate the estate and if Brecht vacated the premises it would hold him for breach of contract. Brecht afterwards paid $ 50 for the month of July and about the last of that month sent the house keys to the respondent. Respondent or its agent, wrote him at once that the keys had been received under protest and respondent would look to him for any loss of rent resulting from his abandonment of the premises. Thereupon the respondent hunted for a new tenant at $ 50 a month and made repairs while the house was vacant. On August 15th it was leased to a new tenant at $ 45 a month, the best price respondent could get. This entailed a loss of five dollars a month during the remaining twenty-two months of the two years' renewal, or $ 110, and the present action on the contract is to recover that sum.
No declarations of law were asked by the respondent. The appellant asked a peremptory declaration in its favor and also this one:
"If from the evidence the court believes that after the defendant moved from the premises in question and tendered the keys thereof to the plaintiff, the plaintiff on the fifteenth day of August, 1903, rented said premises to another tenant for a period of two years from that date, and put said tenant in possession of said premises and collected rent from him, then the plaintiff is not entitled to recover and the finding must be for the defendant."
Both declarations were refused and judgment was entered against the appellant.
The first proposition advanced is that as Brecht did not give notice thirty days prior to the expiration of the original lease of an intention to renew it pursuant to the privilege accorded him, no renewal took place by his holding over, but only a month to month tenancy followed. If a written demise provides for a renewal or extension of the term without prior written notice to the lessor from the lessee, a holding over by the latter is referred to the provision relating to a renewal and taken to be an election to renew pursuant to the privilege accorded. Ins. & Law Building Co. v. Bank, 5 Mo.App. 333, s. c., 71 Mo. 58; Curtis v. Sturgis, 64 Mo.App. 535; Lewis v. Perry, 149 Mo. 257, 50 S.W 821; Clarke v. Merrill, 51 N.H. 415; Cramer v. Cook, 7 Gray 550. As the renewal is for the term and according to the conditions provided in the original agreement, the subsequent tenancy is not one from month to month as, if there were no privilege of renewal, it would be by force of the statute. R. S. 1899, sec. 4110; Griffith v. Lewis, 17 Mo.App. 605. It is said by text-writers that when a renewal occurs by holding over, the result ensues from the wrongful act of the tenant in failing to surrender or vacate the premises; is inferred from that act. So far as this rule applies, the intention of the tenant in holding over is eliminated as one factor determinative of the question whether the term was renewed. But the rule applies, as we understand, only to those instances, where the renewal is by operation of law from a holding over when no renewal is specially provided for, and not by virtue of a stipulation in a lease; for instance, if a tenant for years of lands should hold over after the expiration of his written lease, he would be a tenant from year to year by operation of law. In such instances the election or option is with the landlord to treat the holding-over tenant as a trespasser or as in for a renewal term. 1 McAdam, Landlord and Tenant, p. 83; 1 Taylor, Landlord and Tenant (1 Ed.), sec. 92. But if the privilege to renew is given to the tenant by a written contract, the tenant must exercise an election; and whether he did or not may be a question of law or fact, according to the certainty or uncertainty of the proof. If the very method prescribed for electing to renew is pursued by the tenant a renewal occurs as the legal result. If that method was not followed, something else may have been done sufficient to show the tenant elected to renew. What is relied on in the present case to demonstrate that the trial judge erred in finding Brecht renewed his term, is his omission to give notice of a renewal. This is a very significant circumstance, but not necessarily decisive; for the stipulation in a lease for written notice of an intention to renew, is intended for the benefit of the lessor and can be waived by him. It was waived by the present lessor, the respondent. Instead of the respondent insisting on a written notice, its agent informed Brecht that the lease was regarded as renewed by Brecht's remaining in possession of the premises. That such a provision is for the benefit of the lessor and may be waived is the general rule. Stone v. Stamping Co., 155 Mass. 267, 29 N.E. 623; McClelland v. Rush, 150 Pa. 57, 24 A. 354; Crouch v. Trimby, 83 Hun 276, 31 N.Y.S. 932. There are cases in which it was held that the failure of the tenant to give notice when a written notice was required, prevented a renewal. Beller v. Robinson, 50 Mich. 264, 15 N.W. 448; Cooper v. Joy, 105 Mich. 374, 63 N.W. 414; Bradford v. Patten, 108 Mass. 153. Of course, if a notice is called for, it becomes a condition precedent thus far; if no notice is given, no renewal takes place if the landlord chooses to stand on...
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