Johnson v. Mary Oliver Candy Shops, Inc.

• Decision Date: 03 January 1933
• Citation: 116 Conn. 86,163 A. 606
• Court: Connecticut Supreme Court
• Parties: JOHNSON et al. v. MARY OLIVER CANDY SHOPS, Inc.

163 A. 606

116 Conn. 86

JOHNSON et al. v. MARY OLIVER CANDY SHOPS, Inc.

Supreme Court of Errors of Connecticut.

January 3, 1933

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action to recover rent by Abe Johnson and another against the Mary Oliver Candy Shops, Inc., tried to the court. Judgment for the defendant, and the plaintiffs appeal.

No error.

MALTBIE, C.J., dissenting.

Samuel H. Platcow and Hecman M. Levy, both of New Haven Edward G. Levy and George W. Ross, both of New Haven on the brief), for appellants.

Thomas R. Fitzsimmons, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS J.

The plaintiff Durham was the lessee of certain premises in Bristol comprising three stores, one of which he sublet to the plaintiff Johnson. By a single writing executed by both plaintiffs as lessors, they leased to the defendant a portion of the premises, including a part of the store sublet by Durham to Johnson, for the period of one year from October 1, 1928, for the annual rental of $1,500 payable in monthly payments of $125 each, in advance. The lease granted the lessee " the privilege of renewing this lease upon the expiration thereof for a further period of four years" upon the same terms except that the rent shall be $150 a month, " provided, however, that said lessee shall notify said lessor in writing not less than 60 days before the expiration of this lease of its intention so to do." It further provided that in case the lessee should held over with the written consent of the lessors it should be upon the same terms, and that " no holding over by said party of the second part shall operate to renew this lease without such written consent of said party of the first part." The defendant entered into possession of the leased premises which it occupied during the term of the lease. It did not at any time notify the plaintiffs that it desired to renew the lease, but on several occasions before the expiration of the year the plaintiff Durham urged two representatives of the defendant to continue for a further period, and was told by them that if the defendant continued to occupy the premises it would be upon a month to month basis. On October 1, 1929, as a result of these conversations, Durham executed and delivered to the defendant a writing which provided, in substance, that the defendant might " continue as a tenant" of the premises " until May 15th, 1930," paying the increased rental " as provided in the lease now existing on this store," that " it is quite agreeable that the lease should terminate at that time," but that " it is understood that in case they do decide to terminate lease at this time that they are to give a written notice on or before April 15, 1930." The defendant continued to occupy the premises until May 15, 1930, giving no notice that it intended to vacate them on that date, and thereafter further continued their occupation, paying rent at the increased rate of $150 a month, up to September 30, 1931, when it vacated the premises, having notified Durham in July that it would vacate in sixty days. This action is brought to recover rent for the months of October and November, 1931.

The plaintiff's case is based upon the claim that there was in existence a lease of the premises in question from the plaintiffs to the defendant for the period of four years from October 1, 1929. It is claimed that a lease arose from the exercise by the defendant of its option under the original lease for a renewal of the lease for a further period of four years. The court reached the conclusion that the option clause in the lease constituted a covenant for a renewal as distinguished from one for an extension, and that the defendant was not bound for the further term of four years in the absence of a new lease for that period. City Coal Co. v. Marcus, 95 Conn. 454, 111 A. 857. A technical distinction has been recognized between a covenant for renewal and one for extension. It has been held that under the former a new lease or at least some affirmative act creating an additional term is required. The question as to which exists may be controlled by the intention of the parties as manifested by the entire lease, or by their practical construction of their contract, whereby the privilege may be...