Maier v. Champion

• Decision Date: 19 June 1922
• Citation: 117 A. 603
• Parties: MAIER et al. v. CHAMPION.
• Court: New Jersey Supreme Court

117 A. 603

MAIER et al.

v. CHAMPION.

Court of Errors and Appeals of New Jersey.

June 19, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by George Maier and another, trading as Maier & Bro., against Milton F. Champion. Judgment for the defendant, and the plaintiffs appeal. Affirmed.

Joseph H. Powell and Walter H. Bacon, both of Bridgeton, for appellants.

D. Trueman Stackhouse, of Camden, for respondent.

BERGEN, J. The plaintiff and the defendant entered into a lease for a store property in Bridgeton. The lease was dated January 1, 1915, for the term of three years, with an option of renewal for three years more, at the monthly rent of $25. The option was availed of and the extended lease expired on the 1st day of January 1921. Some time prior to that the defendant paid the rent to the 1st day of February, 1921, which the plaintiff accepted and retained, and thereafter defendant paid plaintiff the rent in monthly installments until the 1st day of September following. Previous to the last payment, and shortly before the 1st of June, 1921, the plaintiff demanded possession on the 1st day of September following, which the defendant refused, and after September 1st brought a suit in ejectment which was tried, resulting in a verdict for the defendant, upon which the judgment appealed from was entered. The only question in the case is whether the tenant became, because of the payment and acceptance of the rent after January 1, 1921, a hold-over tenant entitled to remain in possession unless he was given three months' notice to quit, before the 1st day of January, 1922.

The principal matter argued by appellant is that the original lease for three years only provided for a monthly rental of $25, payable in advance, and did not reserve an annual rent, and for that reason the tenancy was monthly, and not for a term of years, and therefore the hold-over tenancy was one from month to month, subject to a termination at the beginning of any month on three months' notice to quit, and not a tenancy from year to year, and that, plaintiff having given defendant three months' notice prior to September 1, 1921, to quit on that date, his term then expired. At the Close of the case at the trial plaintiff requested the court to instruct the jury to render a verdict for plaintiff. The court declined to accede to the request, which ruling is the main ground of this appeal.

The question thus presented is whether a lease for a term of years, which reserves a rental of $25 per month, payable in advance, is a tenancy for years. This must be answered in the affirmative. Mr. Justice Garrison, speaking for the Supreme Court in Bernstein v. Demmert, 73 N. J. Law, 118, 62 Atl. 187, where the lease was for five years, rent payable monthly, said, on page 120 of 73 N. J. Law, on page 188 of 62 Atl.:

"Beyond the mere fact, therefore, that these monthly payments were thus made, there is nothing upon which an implied tenancy from month to month can rest, and obviously this circumstance itself is not sufficient to raise such an implied letting."

In the instant case the term was fixed at three years, and that term cannot be changed to a monthly tenancy by an implication to be drawn from the fact that time fixed for payment of rent was monthly. Where a tenant in possession of land under a lease for a term of years which provided for a rental during the term, to be paid in equal monthly sums in advance, holds over after the expiration of the agreed term, and pays the rent according to the agreement, which the landlord accepts, he becomes a tenant from year to year. Schneider v. Lord, 62 Mich. 141, 28 N. W. 773.

'"Where no time is mentioned in a lease, and no annual rent is reserved, the time of the tenure under the agreement will be controlled by the interval of payments." Albey v. Weingart, 71 N. J. Law, 92, 53 Atl. 87.

In the case under consideration the time was fixed in the lease at three years,...