Holton v. Andrews
| Citation | 66 S.E. 212,151 N.C. 340 |
| Parties | HOLTON et al. v. ANDREWS. |
| Decision Date | 24 November 1909 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Mecklenburg County; Webb, Judge.
Action by C. S. Holton and others against Frank H. Andrews. Judgment for defendant. Plaintiffs appeal. Reversed.
Where the tenant, under a lease for a year, rent payable monthly with a provision binding the lessor, on request of the lessee in writing, to renew the lease without change in terms, from year to year, for four years, continued in possession, after the end of the year, without such request in writing or otherwise, paying rent monthly as before, he was presumably in for a year, as before, on the same terms, with right to three years more if requested in writing, and not as a renter from month to month; the provision for request in writing being merely for the benefit of the lessor.
Robert S. Hutchinson, for appellants.
E. R Preston, for appellee.
The premises were leased for one year from June 1, 1907, rent payable monthly. The lease contained this provision "The parties of the first part bind themselves upon the request of the party of the second part in writing to renew this lease without change in terms, from year to year, for a period of four years." On June 1, 1908, the defendant continued in possession of the store, without making such request in writing or otherwise, paying rent monthly as before. In January, 1908, erroneously conceiving that he was therefore a renter from month to month, the defendant gave due notice as such and vacated the premises on February 1st. The lessor objected and brings this action to recover the rent from February 1st to June 1st, less the rent from April 23d to June 1st. If the plaintiff's testimony is true that with reasonable diligence he could not rent the store till April 23d, he is entitled to recover rent from February 1, 1909, to that date.
His honor erred in holding this to be a tenancy at will. The requirement that the request for renewal should be in writing was in favor of plaintiff. If not given, he could have refused to renew. The defendant by continuing on was presumed to be in for a year, as before, on the same terms as to time price, and monthly payments, and with a right to three years more if requested in writing. A case exactly in point is Scheelky v. Koch, 119 N.C. 80, 25 S.E. 713; also Harty v. Harris, 120 N.C. 408, 27 S.E. 90. The defendant was, no...
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