Sears v. Smith

• Decision Date: 01 April 1877
• Court: Colorado Supreme Court
• Parties: SEARS v. SMITH et al.

3 Colo. 287

SEARS v. SMITH et al.

Supreme Court of Colorado

April, 1877

Error to Probate Court of Arapahoe County.

THE plaintiff in error brought an action before a justice of the peace, against the defendants in error, to recover certain rents, and obtained judgment. The defendants in the action appealed to the probate court. In the latter court the defendants obtained a verdict upon which judgment was subsequently entered in their favor for costs. To reverse this judgment the plaintiff prosecutes this writ of error.

Messrs SAYRE, WRIGHT & BUTLER, for plaintiff in error.

Mr. C S. THOMAS, and Mr. T. M. PATTERSON, for defendants in error.

THATCHER C. J.

If a tenant under a lease for a year holds over after the expiration of his term, in the absence of a new agreement, he holds the premises subject to the covenants and conditions contained in the original lease. The holding over rests, not upon the former lease, but upon a new contract which the law implies to be for the same time, and upon the same terms with the lease under which the premises were held the preceding year. Bacon v. Brown, 9 Conn. 334; Laguerenne v Dougherty, 35 Penn. 47; McKinney v. Peek, 28 Ill. 174.

This doctrine must be understood with the qualification that the landlord consents to the holding over, by the receipt of rents or other like significant act; otherwise, if the tenant holds over, he holds over as tenant at sufferance. Smith's Landl. and Ten. *219; Tyler on Ej. and Ad. En 221.

The court below, in framing its instructions for the jury, proceeded upon the theory that a mere notice given by the tenant to the landlord, that he would, at the expiration of his term, hold under a different tenure, was of itself sufficient to create a new lease without the consent of the landlord. This is erroneous. To make the error apparent it is only necessary to consider the instructions upon which the plaintiff in error chiefly relies in argument as a ground for reversal.

On behalf of the defendant the court gave the following instruction: 'If the jury beliebe from the evidence that sometime in June, 1873, either Smith or Doll, the defendants in this action, notified the plaintiff that they would not rent the premises for another year; and that they would remove as soon as they could obtain a more suitable place of business; and would only rent from month to month, after February 1, 1873, then if the defendants paid all rent due until February 1, 1874, and removed therefrom prior to February 1, 1874, and gave the plaintiff ten days' notice of such removal, and in the latter part of January, 1874, offered the possession of said premises to plaintiff, which possession was refused, then you should find for the defendants.'

The annual lease introduced in evidence expired July 1st, 1873, upon which day the new term must have commenced. In no view of the evidence could it have begun on February 1st, 1873, five months prior to the termination of the written lease. This instruction countenances the idea that a landlord may be bound without his consent to the terms of a contract which his tenant may propose. The question, which is one of fact, whether the landlord assented to or acquiesced in the proposed new contract, was by this new instruction taken from the jury, whose peculiar province it was to determine it.

The tenants' offer to lease from month to month may consistently with this instruction, never have been accepted; nay, more, it may have been expressly rejected. Unless the landlord assented to or acquiesced in the new terms proffered...