St. Germain v. Sears, Roebuck & Co.

• Decision Date: 21 October 1942
• Docket Number: 16853.
• Citation: 44 N.E.2d 216,112 Ind.App. 412
• Court: Indiana Appellate Court
• Parties: ST. GERMAIN et al. v. SEARS, ROEBUCK & CO.

44 N.E.2d 216

112 Ind.App. 412

ST. GERMAIN et al. v. SEARS, ROEBUCK & CO.

No. 16853.

Appellate Court of Indiana, in Banc.

October 21, 1942

Oscar B. Thiel, of Gary, for appellant.

Steward & Steward, of Gary, for appellee.

BEDWELL Judge.

The appellee, Sears, Roebuck & Co., brought an action in ejectment against the appellants, Ernest St. Germain and Cecelia St. Germain, to recover possession of a lot in the town of East Gary, Indiana, and damages for the alleged unlawful detention thereof. There was a trial by jury which returned a verdict for appellee, and appellants have appealed from the judgment thereon. They are relying for reversal upon the overruling of their motion for a new trial.

They first attack the sufficiency of the evidence to sustain the verdict. Without conflict, the evidence disclosed that appellants held possession of the real estate in controversy under the terms of a written lease agreement executed by appellee, as lessor, to appellants, as lessees, on January 25, 1940. Such instrument provided that the real estate in question be leased for a term of one month, beginning on the 8th day of February, 1940, and ending on the 7th day of March, 1940, at a rental of $25 per month, payable in advance on the 8th day of each month of the tenancy thereby created at such place in the City of Chicago, Illinois, as the lessor might in writing appoint, and until such appointment at 924 South Homan Avenue in Chicago. It further provided, and the lessees agreed, that at the termination of the lease, by lapse of time or otherwise, that they would yield up to the lessor the immediate possession of the premises without notice or demand, and that upon failure of the lessees to pay the rent when and where due according to the terms of the lease, or upon default of any of the covenants, conditions or agreements to be kept or performed by the lessees, that the lease and the tenancy created thereby should terminate without notice or demand by the lessor. Following such provisions, the lease contained a paragraph concerning the extension or renewal of the term thereof, a portion of which paragraph was as follows:

"The within lease is expressly made upon the condition that should the lessee herein hold over with the consent of lessor after expiration of the term hereof or in renewal thereof, such holding over or repeated holding over shall constitute a renewal hereof for a term of like duration, that is to say, from calendar month to calendar month, and upon like terms and conditions as herein expressed. * * * The party of the second part will vacate the premises described in this lease upon receiving thirty days written notice from the party of the first part so to do. Party of the second part agrees to give to party of the first part thirty days written notice before vacating the premises described in this lease."

The appellants entered into possession of the premises under the terms of the lease and paid in advance the rental for the period from January 8, 1940, to March 7, 1940, but failed to pay or tender any rental thereafter. On March 11, 1940 appellee instituted its action to recover possession of the leased real estate and damages for the detention thereof. No written notice was served upon appellants, and appellee contends that it was legally entitled to the possession of the real estate because the term thereof had expired, because it had never consented to an extension or renewal of the term for another month, and because appellants had failed to pay in advance the monthly rental of $25 essential to an extension or renewal of the term for an additional month.

The appellants are contending that the terms of the lease were conflicting, and that despite default in payment in advance of the monthly rental that they were entitled to a thirty days' notice before the lease could be terminated. We feel that the contention is without merit. If the lease had been renewed by the lessees holding over with the consent of the lessor, and the lessees had paid the rental at the time and place as provided for by the lease, and had complied with all the other terms and conditions of the lease to be performed by lessees, then they would have been entitled to a thirty days' notice to terminate their tenancy. But where, as here, the term of the lease had expired, and there is no evidence that it had been renewed or extended with the consent of the lessor, and the lessees had defaulted in the payment in advance of the rental, there remains no basis for appellants' contention that they were entitled to thirty days written notice before their rights under the lease could be terminated.

Appellants claim that the evidence was insufficient because it showed no demand by appellee before the institution of the action. The lease eliminated the necessity of demand and it is specifically provided by statute that where the landlord agrees with the tenant to rent the premises to him for a specified period of time, or where the time for the termination of the tenancy is specified in the contract, or where by the express terms of the contract the rent is to be paid in advance, and the tenant has entered and refuses or...