Murtland v. English

• Decision Date: 12 March 1906
• Docket Number: 87
• Citation: 63 A. 882,214 Pa. 325
• Parties: Murtland, Appellant, v. English
• Court: Pennsylvania Supreme Court

63 A. 882

214 Pa. 325

Murtland, Appellant, v. English

No. 87

Supreme Court of Pennsylvania

March 12, 1906

Argued January 9, 1906

Appeal, No. 87, Jan. T., 1905, by defendant, from judgment of C.P. No. 5, Phila. Co., March T., 1903, No. 848, on verdict for plaintiff in case of Christine K. Murtland et al v Joseph J. English. Affirmed.

Appeal from justice of the peace in landlord and tenant proceedings. Before RALSTON, J.

The facts are stated in the opinion of the Supreme Court.

Verdict for plaintiff for $1,800, upon which the court entered the following judgment: "Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict."

Errors assigned were as follows:

1. The learned court erred in instructing the jury "that the lease expired by its own limitation."

2. In discharging the rule for a new trial.

3. In instructing the jury that the defendant became a tenant from year to year after the expiration of the term of five years provided for in the original letting and hiring.

4. In not instructing the jury that defendant having held over after the end of five years without notice amounts to an election by him to claim the privilege to hold the premises for five years, the extended term as provided in the lease.

5. In not instructing the jury that the option in the lease for an extended term of five years was in favor of the lessee, and both parties having assented to it, the lessee holding over and paying the rent and the lessor accepting the rent for two years in the extended term amounted to an extension of the term of five years, as is provided in covenant nine of the lease.

6. In not saying to the jury, if the landlord had a right to re-enter at the end of five years, because of the failure of the lessee to give notice, as provided in covenant nine of the lease, but thereafter accepted rent under the same covenants and upon the same terms, such acceptance of rent was a waiver of any right of forfeiture on the part of the lessor, and that the lessee became a tenant for the extended term of five years.

7. In changing the verdict of the jury from a money verdict to a verdict as follows: "Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict."

8. In not instructing the jury that the terms of the lease fixed the rental value of the property.

9. In not finding as matter of law that the words in the lease "When and as soon as the term hereby created shall have expired by its own limitation," must be held to mean after the expiration of the term of ten years as contemplated in the lease.

10. In entering judgment for the plaintiff.

We see nothing in the record of this case which would properly convict the trial court of error, and, therefore, the judgment is affirmed.

George Bradford Carr, for appellant. -- The holding over gave the tenant a right to an additional term of five years: Leatherman v. Oliver, 151 Pa. 646; Newman v. Rutter, 8 Watts, 51; Sheaffer v. Sheaffer, 37 Pa. 525; Lauman v. Young, 31 Pa. 306; Duffield v. Hue, 129 Pa. 94; Helme v. Phila. Life Ins. Co., 61 Pa. 107; McMillan v. Philadelphia Co., 159 Pa. 142; Harding v. Seeley, 148 Pa. 20; Creighton v. McKee, 7 Phila. 324; Delashman v. Berry, 20 Mich. 292; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Gillion v. Finley, 22 W.N.C. 124; McBrier v. Marshall, 126 Pa. 390; McClelland v. Rush, 150 Pa. 57; Gilbert v. Price, 18 Pa.Super. 359; Williams v. Ladew, 171 Pa. 369.

Aug. B. Repetto, for appellees. -- The following authorities clearly decide that when a covenant or option for renewal requires a specified notice to be given, that notice must be given, otherwise the renewal is not acquired: McMillan v. Phila. Co., 159 Pa. 142; Swank v. Fretts, 209 Pa. 625; Neill v. Hitchman, 201 Pa. 207.

Where notice of an intention to claim an extended term is required, a naked holding over is not sufficient: Pollman v. Morgester, 99 Pa. 611; McClelland v. Rush, 150 Pa. 57; Cooper v. Joy, 105 Mich. 374 (63 N.W. 414); Bradford v. Patten, 108 Mass. 153; Atlantic Nat. Bank v. Demmon, 139 Mass. 420 (1 N.E. Repr. 833); Stone v. St. Louis Stamping Co., 155 Mass. 267 (29 N.E. Repr. 623).

The mere holding over and acceptance of rent, made the defendant a tenant from year to year: Hollis v. Burns, 100 Pa. 206; Harvey v. Gunzberg, 148 Pa. 294; Williams v. Ladew, 171 Pa. 369.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

On January 31, 1896, the plaintiffs, in writing, leased certain premises to one Franklin S. Gibson, for the term of five years to be computed from February 1, 1896, at the yearly rental of $600, payable in monthly installments of $50.00 each. Subsequently, with plaintiffs' assent, the lease was assigned to J. J. English, the defendant in this case. In the ninth clause of the lease it is "expressly covenanted and agreed that if the lessee, his heirs and assigns, shall perform all the covenants of this lease, then he, his heirs and assigns, shall have the privilege of extending the term of this lease for five years longer, upon their giving to the lessors, their heirs and assigns, three months' notice of their intention to avail themselves of this covenant, upon the terms herein contained." English entered into possession of the leased premises and remained therein until the expiration of the term of five years. He did not give the three months' notice required by the lease, nor any notice of his intention to exercise the option to extend the lease for another term of five years. But after the first five years had expired, he remained in possession of the leased premises, and continued to pay the same rent each month, which was accepted by the lessors, apparently without question, until August 22, 1902, when the lessors served defendant with a notice to vacate at the expiration of his current term which was stated to be January 31, 1903. He did not vacate at the date named, but tendered a month's rent falling due February 1, 1903, at the same rate which he had been paying, which the lessors refused to accept. The lessors then brought proceedings before a magistrate, to recover possession, and on February 21, 1903, judgment was entered against defendant for $50.00 damages and costs. He appealed from this judgment to the court of common pleas. On the trial the court instructed the jury that defendant having failed to give three months' notice of his intention to extend the lease, it was not renewed but expired by its own limitation. By holding over after the expiration of his term, defendant became a tenant from year to year. Notice to quit was admittedly given to him more than three months prior to the end of the current year, and, therefore, the only question left to the jury was the amount of damages to be awarded. The jury were instructed that plaintiff were entitled to recover, first, the possession of the premises; and, second, a sum of money to compensate them for the occupation of the premises during the time for which defendant had paid nothing. There was evidence that the premises had a rental value of $75.00 per month. The jury found a verdict for plaintiffs for $1,800, being at the rate of $75.00 a month, for the two years defendant had paid no rent.

The first assignment of error complains that the learned court below erred in instructing the jury that the lease expired by its own limitation. This raises the main question in the case. The trial judge is sustained in this statement of the law by the great weight of authority. In Trickett's Landlord and Tenant, sec. 550, the rule in Pennsylvania is thus stated:...