Hildebrandt v. Newell

• Decision Date: 26 February 1937
• Docket Number: No. 31071.,31071.
• Citation: 272 N.W. 257,199 Minn. 319
• Parties: HILDEBRANDT v. NEWELL.
• Court: Minnesota Supreme Court

272 N.W. 257

199 Minn. 319

HILDEBRANDT v. NEWELL.

No. 31071.

Supreme Court of Minnesota.

February 26, 1937.

Appeal from Municipal Court of St. Paul; John W. Finehout, Judge.

Action by John C. Hildebrandt against L. L. Newell. Judgment for plaintiff, and defendant appeals.

Affirmed.

Richard Converse, of St. Paul, for appellant.

Kelehan & Dady, of St. Paul, for respondent.

PETERSON, Justice.

Appeal by defendant from a judgment, after verdict, in favor of plaintiff for $386.70, for rent of a lower duplex, under a lease as extended by the parties. The lease was for a term of one year from September 1, 1932, at a rental of $60 per month, payable in advance on the first day of each month. It contained a clause as follows: "Lessee further agree to give Lessor written notice thirty days before the expiration of this lease of his intention to vacate at the end of the lease, otherwise Lessor will have option of continuing this lease for ____ from such expiration without notice to Lessee."

Defendant, with his family, occupied the premises from September 1, 1932, until he left on November 22, 1933. Thereafter, defendant's wife, with their daughter part of the time, continued to occupy the premises until August 1, 1934. Defendant did not give plaintiff any notice prior to the expiration of the lease of his intention to vacate, but held over and paid the rent for September, October, November, and December, 1933.

1. The holding over was pursuant to express contract with the owner, within the meaning of Mason's Minn.St. 1927, § 8193, so that the resulting tenancy is not one for the shortest interval between the times of payment of rent under the terms of the expired lease. Smith v. Bell, 44 Minn. 524, 47 N.W. 263. A holding over pursuant to the express terms of a written lease works a renewal of the lease for another term. Trainor v. Schutz, 98 Minn. 213, 107 N.W. 812; Kean v. Story & Clark Piano Co., 121 Minn. 198, 140 N.W. 1031. The lease as extended is regarded as continuing from the very beginning of the original lease. Quade v. Fitzloff, 93 Minn. 115, 100 N.W 660; Kean v. Story & Clark Piano Co., supra. In the extension clause (set out above) the period for which the lease may be continued was left blank, and hence the period of the extension was not expressly stated. All the terms of the original lease apply and will be included in the new lease as renewed or extended, with the exception of the clause in regard to a renewal or extension. Kean v. Story & Clark Piano Co., supra, 121 Minn. 198, at page 200, 140 N.W. 1031. By the extension of the lease, the defendant as lessee became obligated to pay to the plaintiff as lessor a full year's rent for the leased premises.

2. It is claimed that the lease was terminated by agreement of the parties. Defendant insists that the evidence shows a surrender of the premises by him and an acceptance of them by plaintiff, resulting in a termination of the lease and all liability thereunder as a matter of law. In this respect he claims that the evidence shows that his wife took the December, 1933, rent to plaintiff; told him that she and defendant were having domestic trouble; that they had separated; that she could pay only $35 per month rent; that she threatened to move from the premises if the offer of $35 per month was not accepted; and that she served a notice to terminate the lease. Plaintiff admits that defendant's wife brought the December rent to him; that she stated she and defendant were having domestic trouble; that he did not know that defendant and his wife had separated and was not so advised by either the defendant or his wife; that defendant's wife told plaintiff that she could pay only $35 per month until the domestic matters were "straightened out"; that she would have to vacate the premises unless he would let her stay on those terms during that time; and that he called her attention to the fact that he had a written lease with defendant but that he would let her stay until the matter was straightened out, or until spring, if the $35 per month was paid. He denied having received the written notice. The wife referred to the written notice as "my notice" to quit.

A surrender by agreement of leased premises can result only from an agreement, express or implied, between the lessor and lessee that the lessee surrender and the lessor accept the same. Dunnell, Minn.Dig.(2d Ed.) § 5407; Nelson v. Thompson, 23 Minn. 508; Dayton v. Craik, 26 Minn. 133, 1 N.W. 813; Trimble v. Lake Superior & Puget Sound Co., 99 Minn. 11, 108 N.W. 867; Donaldson v. Mona Motor Oil Co., 190 Minn. 231, 251 N.W. 272. There was no surrender of the premises by agreement. Plaintiff denies any agreement at all. Defendant admits that he did not make such an agreement himself with plaintiff, and, if he did not act himself, his contract could be made only by one acting as his agent. There was no proof that the wife was the agent of the husband. Defendant's wife was the only witness who testified in respect to this matter, and she testified that in everything she did she was acting entirely for herself and not for her husband. The marital relation alone did not constitute the wife the agent of the husband to surrender the lease and make a new one for him. He may appoint the wife his agent. That the wife was defendant's agent must be proved to make the contract that of the husband, the same as though the marital relation did not exist. Bergh v. Warner, 47 Minn. 250, 50 N.W. 77, 28 Am.St.Rep. 362; 13 R.C.L. 1177, § 206. Lacking proof of such agency, it is not shown that defendant agreed to surrender. Lawhead v. Monroe Bldg. Co. (C.C.A. 6th) 252 F. 758 (holding that there was no surrender of premises by the act of the secretary of defendant corporation who had no power to surrender); Dodd v. Acklom, 6 M. & G. 672, 46 E.C.L. 672, 134 Reprint, 1063 (holding that, where it is claimed a surrender of premises had been made by the wife, her agency to act for the husband must be made to appear).

3. Defendant asserts that a surrender resulted by operation of law because plaintiff and defendant's wife entered into a new lease. This is said to result from the arrangement whereby the wife was to pay $35 per month until the domestic affairs of defendant and his wife were adjusted, or until spring. The testimony is that there was no new lease and that the matter was not mentioned. A surrender by operation of law takes place, as...