Miller v. Albany Lodge No. 206, F. & A.M.

• Decision Date: 01 March 1916
• Citation: 168 Ky. 755,182 S.W. 936
• Parties: MILLER v. ALBANY LODGE NO. 206, F. & A. M.
• Court: Kentucky Court of Appeals

182 S.W. 936

168 Ky. 755

MILLER v. ALBANY LODGE NO. 206, F. & A. M.

Court of Appeals of Kentucky.

March 1, 1916

Appeal from Circuit Court, Clinton County.

Action by the Albany Lodge No. 206, Free and Accepted Masons against J. L. Miller. From a judgment for plaintiff defendant appeals. Reversed and remanded.

E Bertram, of Albany, for appellant.

O. B Bertram, of Monticello, S. G. Smith, of Albany, and Cyrus B. Parrigin, of Albany, for appellee.

CLAY C.

On December 26, 1913, Albany Lodge No. 206, F. & A. M., leased to John L. Miller a storeroom and lot in Albany for a period of one year from the 1st day of January, 1914, at an agreed rental of $120 per annum, "with option at same rate for five years." Miller occupied the premises during the first year of the lease, and held over until January 23, 1915, when this action of forcible detainer was brought against him. The trial before a justice resulted in a verdict and judgment for Miller. On appeal the law and facts were submitted to the circuit court, which rendered a judgment restoring the property to the lodge. Miller appeals.

It is admitted that Miller held over after the first year of the lease, and the question is: Did he forfeit his right to the extended term by failing to give notice during the first year of the lease, or did his holding over constitute an election to extend his term?

The courts make a distinction between a covenant to renew a lease and a provision conferring on the lessee the privilege of extending his term. In the former case some positive act on the part of the parties or notice by the tenant is required, while in the latter case a mere holding over by the tenant for a portion of the extended term is, in the absence of a stipulation for notice in the lease, a sufficient notice, and constitutes an election to hold for the additional or extended term. The reason for the rule is that the additional time is not a new demise, but a continuation of the old one. In such a case the tenant is not only bound for the additional or extended term as fully and completely as though that term has been originally included in the lease when executed, but is entitled to remain and occupy the premises during the additional or extended term, even though the landlord should wish to oust him. Wood on Landlord and Tenant, 678; Taylor on Landlord and Tenant, 278; Brown v. Samuels, 70 S.W. 1047, 24 Ky. Law Rep. 1216; Kentucky Lumber Co. v. Newell, 105 S.W. 972, 32 Ky. Law Rep. 396; Plattsmouth v. New Hampshire Sav. Bank, 139 F. 631, 71 C.C.A. 507; Hays v. Goldman, 71 Ark. 251, 72 S.W. 563; Shamp v. White, 106 Cal. 222, 39 P. 537; Brandenburg v. Reithman, 7 Colo. 323, 3 P. 577; Hamby v. Georgia Iron & Coal Co., 127 Ga. 802, 56 S.E. 1033; Montgomery v. Hamilton County, 76 Ind. 362, 40 Am.Rep. 250; Terstegge v. First German Mut. Ben. Soc., 92 Ind. 82, 47 Am.Rep. 135; Holley v. Young, 66 Me. 520; Kramer v. Cook, 7 Gray (Mass.) 550; Kimball v. Cross, 136 Mass. 300; Cooper v. Joy, 105 Mich. 374, 63 N.W. 414; Mershon v. Williams, 62 N. J. Law, 779, 42 A. 778; Voege v. Ronalds, 83 Hun, 114, 31 N.Y.S. 353; Kelly v. Varnes, 52 A.D. 100, 64 N.Y.S. 1040; Harding v. Seeley, 148 Pa. 20, 23 A. 1118; Lipper v. Bouve, 6 Pa. Super. Ct. 452, 41 W. N.C. 566; Gilbert v. Price, 18 Pa. Super. Ct. 359; Henderson v. Schuylkill Valley Clay Mfg. Co., 24 Pa. Super. Ct. 422; Canonico v. Lucente, 40 Pa. Super. Ct. 75; Heffron v. Treber, 21 S.D. 194, 110 N.W. 781, 130 Am.St.Rep. 711; Carhart v. White Mantel & Tile Co., 122 Tenn. 455, 123 S.W. 747, 19 Ann.Cas. 396; Racke v. Anheuser-Busch Brewing Ass'n, 17 Tex.Civ.App. 167, 42 S.W. 774; Peehl v. Bumbalek, 99 Wis. 62, 74 N.W. 545; Slater v. Kimbro, 91 Ga. 217, 18 S.E. 296, 44 Am.St.Rep. 19; Cusack v. Gunning System, 109 Ill.App. 588; Callahan Co. v. Michael, 45 Ind.App. 215, 90 N.E. 642; Chandler v. McGinning, 8 Kan. App. 421, 55 P. 103; Delashman v. Berry, 20 Mich. 292, 4 Am.Rep. 392.

In Brown v. Samuels, supra, Samuels leased to Brown certain premises "for the period of five years with the privilege of five years more." The court, after pointing out the distinction between a privilege to renew the lease and the privilege of an additional term, held that Brown, by holding over after the first five years, exercised his privilege of five years more, and could not be dispossessed under a writ of forcible detainer.

There is no substantial difference between a lease for one year "with option at same rate for five years" and a lease "for the...