Mosher v. Sabra

• Decision Date: 14 January 1929
• Docket Number: Civil 2723
• Citation: 34 Ariz. 536,273 P. 534
• Parties: HATTIE L. MOSHER, Appellant v. JOHN SABRA and MARY E. WINTERMUTE, as Administratrix of the Estate of GEORGE J. C. WINTERMUTE, Deceased, Appellees
• Court: Arizona Supreme Court

273 P. 534

34 Ariz. 536

HATTIE L. MOSHER, Appellant v. JOHN SABRA and MARY E. WINTERMUTE, as Administratrix of the Estate of GEORGE J. C. WINTERMUTE, Deceased, Appellees

Civil No. 2723

Supreme Court of Arizona

January 14, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Mr. J C. Niles and Mr. John W. Ray, for Appellant.

Messrs Flanigan & Fields, for Appellees.

OPINION

ROSS, J.

This action was brought by Hattie L. Mosher against John Sabra and Mary E. Wintermute, as administratrix of the estate of George J. C. Wintermute, deceased, upon two counts, for rent of building known as 301-303 North Center Street in the city of Phoenix. The first count is for four months' rent, as per the terms of a written lease, at $412.50 a month, or $1,650. The second count is for rent at the same rate for holding over and retaining possession of premises for eleven months after the expiration of the term of the written lease, or for $4,537.50. The lease contained no provision for renewal or for an extension.

The case was tried to the court without a jury, and upon findings of fact and conclusions of law judgment was entered against both defendants for the balance of the rent due under the written lease, and against Sabra only for the holdover period of eleven months. The plaintiff, Mosher, has appealed, and assigns as error the refusal of the court to give her judgment against the defendant administratrix for the holdover period.

The correctness of the court's findings of fact is not questioned by either of the parties, nor did either request any additional findings. Such being the case, our review will be confined to the facts so found. 4 C.J. 656, § 2548; County of Pinal v. Heiner, 24 Ariz. 346 209 P. 714.

The first finding is that the written lease was to the defendant John Sabra and George J. C. Wintermute for two years and five months, or from March 1, 1921, to August 1, 1923, at $375 a month, ten per cent to be added if not paid within five days after due, or, with the penalty, $412.50 a month. The other findings were:

"(2) That the lessees, Sabra and Wintermute went into possession and occupied the premises in a business venture first known as Coats Tire House, then as Sabra Rubber Company, and later as Dayton Rubber Company, but the dates of the change of name are not clear.

"(3) That some time in March, 1922, about a year after the beginning period of the lease, Wintermute sold his interest in the business to Sabra, who was his son-in-law, and thereafter Wintermute ceased to have any interest in the business. Of this sale by Wintermute and the purchase by Sabra, the plaintiff Mosher had no notice. The business was all the time under the active management and control of Sabra the same after this sale as before it had been, Wintermute never having been active in the business, its management or control.

"(4) The monthly rentals were paid up to April 1st, but were not paid for the last four months of the contracted lease term. That there is due under the lease contract four months rental at four hundred twelve and one-half ($412.50) dollars per month, total of sixteen hundred and fifty ($1,650.00) dollars.

"(5) That after the termination of the lease term, that is, August 1st, 1923, the defendant Sabra continued to occupy the premises, the same as before the termination under the same name as before and doing the same business as before and without any other or further contract with the plaintiff than the original for a period of eleven (11) months, or up to July 1st, 1924, when the premises were surrendered to the plaintiff and Sabra vacated.

"(6) That for this period of eleven (11) months held without express contract subsequent to the original lease contract the rental is the same as in that contract, four hundred twelve and one-half ($412.50) dollars per month."

We have already given the court's conclusions of law, based upon the found facts. Under these facts, was Wintermute, and since his death is his estate, liable for the rent that accrued during the holdover period of eleven months? The premises were rented to him and Sabra jointly, and under his covenant to pay rent he was liable, whether he occupied them or not for the full term of the lease, or until August 1, 1923, but his contract obligation expired on that day. If he is liable for rent for the holdover period, it must be from the simple fact that he jointly leased the premises with Sabra, and when his obligation under the lease expired failed to notify the landlord that he no longer occupied or retained the premises, or it must be because of his relation to Sabra his administratrix is estopped to deny that Sabra's occupation and possession were not also his.

In Parker v. Page, 41 Or. 579, 69 P. 822, it is stated that the relation of the landlord and tenant, where the latter holds over, is contractual. We quote from that decision the general rule as there stated:

"By the very great weight of American authority, where there has been a leasing for a year, or for a term of years, and a holding over after the term with the tacit acquiescence of the landlord, the relationship and agreement of the parties is converted into a technical tenancy from year to year. This result springs from the act of the tenant in holding after the term, by which he becomes a trespasser, and the landlord's recognition of his lawful right to continue, by which the tort is waived; and the law implies a contract of further leasing -- that is, from year to year -- upon the same terms and conditions contained in the expired lease. It is optional with the landlord whether to treat the continued holding as a trespass or to regard the act of the tenant as lawful, and the tenant has no alternative but to abide his determination."

This rule in its fullness is not the rule in this state, although the principle upon which it is founded is basic. Under our statute, yearly tenancy terminates at the end of the year, unless written permission is given the tenant to remain for a longer and fixed period. Tenancies from month to month terminate at once for failure to pay rent and on ten days' notice from the landlord in all other cases, and when the tenancy is for a certain period the tenant is "bound to surrender possession" at its termination, and no notice to quit or demand of possession shall be necessary. Par. 4714, Civ. Code 1913. These provisions, however, being in favor of the landlord, he no doubt, if the tenant does hold over, may waive them and also the tort, and permit the tenant to continue in possession, in which event the tenancy is fixed by paragraph 4715, Civil Code, reading:

"When the lessee or tenant of...