Ins. & Law Bldg. Co. v. Nat'l Bank of Missouri

• Decision Date: 31 October 1879
• Citation: 71 Mo. 58
• Parties: THE INSURANCE & LAW BUILDING COMPANY v. THE NATIONAL BANK OF MISSOURI, Plaintiff in Error.
• Court: Missouri Supreme Court

71 Mo. 58

THE INSURANCE & LAW BUILDING COMPANY

v.THE NATIONAL BANK OF MISSOURI, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1879.

Error to St. Louis Court of Appeals.

AFFIRMED.

Henderson & Shields for plaintiff in error, in argument cited Taylor on Landlord and Tenant, § 332; Thiebaud v. National Bank, 42 Ind. 212; Bradford v. Patten, 108 Mass. 153; Hunter v. Silvers, 15 Ill. 174; Finney v. St. Louis, 39 Mo. 177; Bircher v. Parker, 40 Mo. 119; Constant v. Abell,36 Mo 174; Grant v. White, 42 Mo. 285; Hammon v. Douglas, 50 Mo. 434; s. c., 50 Mo. 442.

Britton A. Hill for defendant in error, in argument cited Taylor on Landlord and Tenant, §§ 15, 81, 332, 43, 32, Kramer v. Cook, 7 Gray 550; House v. Burr, 24 Barb. 525, Levitsky v. Canning, 33 Cal. 299; Delashman v. Berry, 20 Mich. 292; Orton v. Noonan, 27 Wis. 272; Ranlet v. Cook, 44 N. H. 516; Hall v. Spaulding, 42 N. H. 259; Bradford v. Patten, 108 Mass. 153; Renoud v. Daskam, 34 Conn. 512; Woodcock v. Roberts, 66 Barb. 498; Creighton v. McKee, 2 Brews. (Pa.) 383; Schroeder v. Gemeinder, 10 Nev. 355; Falley v. Giles. 29 Ind. 114.

HOUGH, J.

On the 1st day of May, 1867, the plaintiff leased to the defendant a certain building or banking house in the city of St. Louis, “for and during the term of three years at the yearly rent of $7,000, payable $583.33 monthly, when due.” Said lease, which was signed by both parties, contained the following stipulations: “The said lessee, and all holding under it, hereby engage to pay the rent above reserved, and double rent for every day it, or any one else in its name, shall hold on to the whole, or any part of said tenement after the expiration of this lease.” * * “The said lessee has the privilege of a renewal for ten years more from the expiration of this lease at the yearly rent of $7,000, payable monthly.” The defendant entered into posession of the leased premises on the 1st day of May, 1867, and continued in possession for the original term of three years, at the expiration of which time, so far as the record shows, the lessee did not request a new lease, nor did the plaintiff tender a new lease. The defendant, however, continued in possession paying the sum of $583.33 monthly, just as before, until May 31st, 1876, when, having previously given a month's notice of its intention to quit, it removed from the premises. The plaintiff refused to accept a surrender, and brought the present suit for the rent accruing subsequently to the removal of the defendant. On this state of facts the circuit court held that after the expiration of the three years the defendant was a tenant from month to month, and accordingly gave judgment for the defendant. The St. Louis court of appeals reversed the judgment of the circuit court and gave judgment for the plaintiff, and the defendant has brought the case to this court by writ of error.

It is contended, on behalf of the defendant, that the terms of the lease required the plaintiff to make a new lease at the defendant's option, and that the only effect of the continued occupation of the premises with the consent of the landlord and the payment of rent, was to create, by implication, a new contract of tenancy from month to month under the act of 1869, which, in towns and cities, converts what were previously tenancies from year to year into tenancies from month to month. I is conceded that when the lease provides simply for an extension of the term, at the option of the lessee, nothing need be done by the lessor, and the occupation of the premises and payment of rent constitute sufficient evidence of the lessee's election so to extend the term. But it is insisted that when the lease provides for a “renewal” at the option of the lessee, though for a specified time and at a designated rate, there must be affirmative action by the lessor as well as the lessee; and while the lease for the additional term need not be rewritten and resigned, some new express contract in relation thereto must be made by both parties before the lease can be regarded as having been renewed; and in the absence of such express contract, the only contract existing between the parties is that which the law will imply.

It may well be doubted whether the word “renewal,” as employed in the lease before us, implies anything more than an extension of the term. In...