Kean v. Story & Clark Piano Co.
| Decision Date | 18 April 1913 |
| Docket Number | 18,125 -- (197) |
| Parties | JOHN T. KEAN v. STORY & CLARK PIANO COMPANY |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis to recover $ 400 for rent of a store building for the months of June, July, August and September, 1912. The answer alleged defendant occupied the premises for February, March, April and May, 1912, and paid rent therefor; that according to the terms of the lease defendant was required, in case it desired to extend the lease further than the term of one year from February 1 1911, to give the lessor notice of 30 days prior to the expiration of the lease of its desire so to do; that such notice was never given by defendant, and by the terms of the lease the same terminated on the last day of January, 1912 that on May 31, 1912, plaintiff accepted possession of the premises. The reply admitted the lease required defendant to give notice of its intention to renew the lease and admitted it did not comply therewith, but alleged defendant held over from February 1, 1912, to May 31, 1912, and paid rent for each of said months; and both plaintiff and defendant waived the giving of such notice. The case was heard upon facts stipulated in open court by Charles L. Smith, J., who made findings and ordered judgment in favor of plaintiff for the amount demanded. From the judgment entered pursuant to the order for judgment, defendant appealed. Affirmed.
Judgment affirmed.
Tenant's option -- terms of original lease apply.
1. Where the lessee has the option to rent for an additional time, but the written lease is silent as to the terms and conditions of the optional tenancy, the terms and conditions of the original letting apply thereto, with the exception of the option provision, and in case of urban property the exercise of the option so given constitutes an express contract, under section 3333, R. L. 1905.
Waiver of notice by landlord.
2. Where the exercise of such option is conditioned upon giving notice prior to the expiration of the original term, the notice, being for the sole benefit of the lessor, may be waived by him.
Same -- evidence.
3. The admitted fact that the lessee held over and for several months paid the rent, which was accepted by the lessor, held sufficient to justify the court in holding that the lessee elected to exercise the option and that the lessor waived the notice.
M. C. Tifft and W. B. Anderson, for appellant.
Benton, Molyneaux & Morley, for respondent.
A store building in the city of Minneapolis was let by plaintiff to defendant for one year, beginning February 1, 1911, at the monthly rental of $ 100. The written lease gave the lessee an option for an additional two years' term, if notice thereof was given to the lessor. The controversy here is whether such an extension or additional term was effected. The here material part of the lease appears in these words:
"To have and to hold * * * for the term of one (1) year from February 1, 1911, * * * with option on the part of the lessee to rent for two additional years on thirty (30) days' notice given to said lessor prior to expiration of lease."
Defendant remained after the year expired, and paid rent monthly as under the original term for four months, but on May 31, 1912, vacated, having given notice 30 days prior thereto of his intention to then terminate his tenancy. This action is for the recovery of the rent for the four subsequent months, on the theory that a leasing for the additional term of two years had taken place. From a judgment for plaintiff, defendant appeals.
It was admitted that defendant entered under the lease set out in the complaint, occupied and paid rent uninterruptedly up to May 31, 1912, when it vacated, having 30 days prior thereto given written notice of its intention so to do; also that defendant did not give plaintiff any notice prior to February 1, 1912, that it would exercise its option to rent the premises for two additional years. No testimony was offered, but from the admissions mentioned the court found that plaintiff, by receiving the rent after the expiration of the original term, waived the notice for an extension, and that the defendant exercised the option to rent for two additional years by remaining in possession and paying rent. Therefore the only question on this appeal is this: Where the lease gives the lessee the option for an additional term upon giving notice within a specified time of an election to avail himself of the option, may the court find that such notice has been waived and an election accomplished from the fact that the lessee remained in possession and paid rent after the expiration of the...
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