Providence Co. Sav. Bank v. Hall

• Decision Date: 18 February 1888
• Citation: 16 R.I. 154,13 A. 122
• Parties: PROVIDENCE CO. SAV. BANK v. HALL.
• Court: Rhode Island Supreme Court

13 A. 122

16 R.I. 154

PROVIDENCE CO. SAV. BANK

v. HALL.

Supreme Court of Rhode Island.

February 18, 1888.

Petition by defendant for a new trial.

W. B. Tanner, for plaintiff. James C. Collins, for defendant.

DURFEE, C. J. This is a petition for the new trial of an action of assumpsit for the use and occupation of a small farm, with dwelling-house thereon, for one year. The action was tried in the court of common pleas. It appeared on the trial that the defendant entered into occupation in 1877, hiring for a year, from April 1, 1877, to April 1, 1878, at $300 per annum, and continued to occupy at the same rent until the year 1883-84; that on October 1, 1883, he received written notice from the plaintiff bank to quit April 1, 1884, but continued notwithstanding to occupy until the latter part of November, 1884, when, without written notice to the bank, he quitted, leaving the key with a neighbor, from whom he got it when he first entered as tenant. He testified that about April 1, 1884, he saw the treasurer of the bank, who had charge of the letting, and asked permission to remain a few months, until a house then building for him could be completed, and that the treasurer refused to give it, saying that it would be an injury to the bank, which wanted to sell, and that in August the bank had a board set up on the premises with "For Sale" painted thereon. He also testified that the farm contained only about 13 acres, mostly poor land; that he did not plough or plant in 1884, because he expected to leave, and only mowed the lawn in front of the house, getting not over a quarter of a ton of hay. This testimony was not contradicted. He had, however, been acccustomed to pay the taxes, and to have the amount deducted from the bill for rent. He paid the tax of 1884. The bank claimed on this testimony that it was entitled to recover $300 rent for the year ending April 1, 1885. The defendant contended that under the notice to quit his yearly tenancy ended April 1, 1884, and that he was not liable for a year's rent for the year ensuing. He asked the court to charge the jury that, if they should find that the bank gave the proper notice to terminate the letting April 1, 1884, the letting did then terminate, and the bank, if it did not afterwards recognize him as tenant, by taking rent or otherwise, was absolved from giving him further notice, and he was absolved from giving notice to the bank, in order to quit legally; and also to charge that, if the letting came to an end April 1, 1884, and the bank refused to let further, there could be no yearly letting or tenancy afterwards, until a new contract was entered into, either by implication or otherwise. The court refused so to charge, but did charge, in effect, that if the bank delayed to act on the notice to quit for an unreasonable time, it lost the benefit of it, and could only terminate the letting at the end of the going year by another notice, and the defendant could only terminate his tenancy in like manner, and left the jury to determine as a matter of fact whether the bank did unreasonably delay. The jury returned a verdict for the bank for a year's rent. The question is whether the rulings and refusals to rule were erroneous. The purport of the charge was that if a tenant from year to year holds over after his tenancy has been terminated by notice to quit, it is optional with the landlord either to follow up the notice by ejectment, or to waive the notice, and hold the tenant for another year, whether the tenant actually agrees to it or not. The charge is supported by numerous American cases. Hemphill v. Flynn, 2 Pa. St. 144; Bacon v. Brown, 9 Conn. 334; Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y. 309, 10 Amer. Rep. 609; Witt v. Mayor, etc., 5 Rob. (N. Y.) 248, also 6 Rob. (N. Y.) 441; Noel v. McCrory, 7 Cold. 623; Schuisler v. Ames, 16 Ala. 73; Wolffe v. Wolffe, 69 Ala. 549; Cloth Co. v. Gardner, 99 Ill. 151. Some of these cases are very strong. Thus, in Conway v. Starkweather, the tenant held over 14 days, having refused to renew the tenancy before his time expired; in Schuyler v. Smith, tenants of a wharf held over 21 days, while another wharf was preparing for them, they having given notice before their time ended that they should not continue the tenancy; in Wolffe v. Wolffe the tenant held 10 days after his time expired, under notice previously given that he could not quit at once, but would pay a reasonable rent for the unavoidable occupancy; and in Cloth Co. v. Gardner the tenants held over 11 days, under notice that they should not remain without a reduction for rent; their holding over being in part the result of expectation that the rent would be reduced. It is true that in the cases cited the tenant was in for a...