Tonkel v. Riteman

• Decision Date: 25 April 1932
• Docket Number: 29989
• Citation: 163 Miss. 216,141 So. 344
• Court: Mississippi Supreme Court
• Parties: TONKEL et al. v. RITEMAN

141 So. 344

163 Miss. 216

TONKEL et al. v. RITEMAN

No. 29989

Supreme Court of Mississippi

April 25, 1932

Division B

1. LANDLORD AND TENANT.

Tenant continuing to occupy property without new lease becomes liable under rates and terms of expired lease.

2. LANDLORD AND TENANT.

Tenant when lease expires, should surrender premises or else procure new contract.

3. LANDLORD AND TENANT.

If tenant fails to surrender premises or procure new contract on expiration of lease, landlord may treat tenant as trespasser or tenant under previous terms.

4. LANDLORD AND TENANT. Notwithstanding tenant before expiration of lease told landlord's agent that, unless tenant could procure reduction in rent, he would only hold from month to month, tenant holding over held bound by original lease.

Tenant was bound by terms of original lease, since the only response made by the landlord's agent to the tenant was that agent would take matter up with landlord, and the conversation in respect to a new lease had not brought the transaction into such a state of progress as it might be considered as having attained to the dignity of negotiations for new lease, which would have effect of preventing terms of old lease from becoming binding on tenant.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Action between M. Tonkel and others and Helen L. Riteman. From an adverse judgment, the former appeals. Affirmed.

Affirmed.

Wynn & Hafter, of Greenville, for appellants.

A renewal by the month, and not by the year, is to be implied from a tenant's mere continued possession and payment of a monthly rent beyond the period of a lease, though for a year or term of years, which reserves the rent as a monthly one.

Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.

To create a yearly tenancy by implication, the property must be occupied under a rent payable as a yearly one.

Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.

The reservation of rent, with its payment at stated periods, is the principal, but not the only, criterion to determine the implied term. The intention of the parties should prevail.

Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.

As a general rule if the holding over is with the consent of the landlord for some particular purpose or for a specified time, the tenant cannot be held for another term. Thus where the holding over is with the consent of the landlord pending negotiations for a new lease which fell through, the holding over does not render the tenant liable for another term.

16 R. C. L. 1165; Leggett v. Louisiana Purchase Exposition, 157 Mo.App. 108, 137 S.W. 893; Schilling v. Klien, 41 Ill.App. 209; Kentwood Hotel Company v. Hiland, 153 Ill.App. 108.

The question of whether or not a tenant holds over under the terms and conditions of a former lease is a question of fact for the jury.

Montgomery v. Willis, 45 Nebr. 434, 63 N.W. 79.

Where a tenant for years holds over with the consent of his landlord, his tenancy will be one from year to year, or for a shorter period, according to the intention of the parties. Such intention should in each case be found and determined as a question of fact, by the triers of the fact, and in so doing they may take into consideration the character of the property and the use to which the same is put, as well as the periods at which the rent is to be paid.

Withnell v. Petzold, 17 Mo.App. 669, 25 L.R.A. 856; Grant v. White, 42 Mo. 285; Phoenixville v. Walter, 147 Pa. 501; Faust v. Akron Iron Company, 37 N.Y.S. 374; Gerhart Realty Company v. Brecht, 109 Mo.App. 25, 84 S.W. 216; Thomas Hinds Lodge No. 58 F. & A. M. v. Presbyterian Church, 103 Miss. 130, 60 So. 67.

Percy, Strauss & Kellner, of Greenville, for appellee.

Appellant entered into possession of the apartment, knowing that appellee was contending for a new lease of twelve months at fifty-five dollars per month, and knowing that appellee did not assent to his occupancy of the apartment on a month to month basis.

Appellant took his chances that appellee would come to his terms but if he did not appellee was bound for the lease of one year at a rent of fifty-five dollars per month.

Wachenfeld v. Favre, 152 Miss. 1.

Argued orally by Jerome S. Hafter, for appellant, and by Ernest Kellner, Jr., for appellee.

OPINION

Griffith, J.

It is firmly established that where, without a new contract, a tenant continues to occupy the property which he has held under an annual lease, he becomes liable as tenant for another year at the same rate and under the same terms. Love v. Law, 57 Miss. 596; Usher v. Moss, 50 Miss. 208. It is the duty of a...