Wallworth v. Johnson.

• Decision Date: 23 October 1947
• Citation: 55 A.2d 305
• Parties: WALLWORTH v. JOHNSON.
• Court: New Jersey Supreme Court

55 A.2d 305

WALLWORTH

v.JOHNSON.

Supreme Court of New Jersey, Camden County.

Oct. 23, 1947.

Action in ejectment by Emma G. Wallworth against Frank T. Johnson. On motion by plaintiff to strike defendant's answer.

Answer and second defense allowed to stand, and first defense struck.

Grover C. Richman, of Camden, for plaintiff.

Ephraim Tomlinson, 2nd, of Camden, for defendant.

PROCTOR, Supreme Court Commissioner.

This is a motion by the plaintiff to strike the answer filed by the defendant to an action in ejectment.

The answer denies plaintiff's right to possession of the premises in question and also sets up two defenses, the first being that the controversy involved in the present action was adjudicated in the Camden City District Court wherein judgment was entered on June 26, 1947, in favor of the defendant. The second defense is that by the terms of a lease entered into by the parties and the renewal thereof the defendant is entitled to possession until June 1, 1948.

It appears that the plaintiff leased the premises to the defendant for a term of two years, commencing June 1, 1944, at a yearly rental of $720 to be paid in monthly installments of $60 in advance. The lease contained the following provision: ‘It is also understood and agreed that the expiration of this lease, the party of the second part has the privilege of renewing this lease for a period of two (2) more years, at a rental that is agreeable to both the party of the first part and the party of the second part.’

The defendant entered into possession of the premises under the terms of the lease on or about June 1, 1944 and has continued in possession until the present time.

It will be seen that the lease (without the renewal or extension) expired May 31, 1946. The defendant continued to pay the rent called for under the lease to the plaintiff from that date up until June 1, 1947. It also appears from the affidavit of the defendant that he had tendered checks on June 1, 1947, and July 1, 1947, to the plaintiff which is not denied.

Plaintiff moves to strike the answer as sham and also moves to strike the first and second defenses as frivolous and insufficient in law in that said defenses do not comply with Rule 185 of the Supreme Court, N.J.S.A. tit. 2.

The first defense of res judicata is frivolous and should be struck. In a landlord and tenant suit the disposition by the District Court creates no estoppel by judgment against the landlord. Sbrolla v. Hess, 133 N.J.L. 71, 42 A.2d 569. The District Court judgment is not res judicata. Van Vlaandern Mach. Co. v. Fox, 95 N.J.L. 40, 111 A. 687; Kietrys v. Cregar, 43 A.2d 810, 23 N.J.Misc. 273, 276.

The question to be decided is whether or not the plaintiff (landlord) is deemed to have assented to a renewal of the lease by reason of the defendant (tenant) holding over at the expiration of the original term and the payment by the tenant to the landlord of the rent called for under the terms of the original lease. It seems to be settled in New Jersey that where the rent and term are fixed for the renewal, in the absence of any provision of agreement specifying the manner of exercising the option of renewal by the tenant, any conduct of the tenant which reasonably apprizes the landlord of the tenant's desire to enjoy the additional term should be regarded as fully satisfying the option to renew. Hurley-Tobin Co. v. White, 84 N.J.Eq. 60, 94 A. 52. An election to accept an option for an additional term was said by our Court of Errors and Appeals to be indicated by the tenant as continuing in possession and paying the rent. Batura v. McBride, 75 N.J.L. 480, 68 A. 113. And in Mershon v. Williams, 62 N.J.L. 779, 42 A. 778, 780, it was said: ‘If no notice is stipulated for, the tenant's mere continuance in possession, and paying rent, though with no express notice of his desire for the further term, entitle and bind him thereto.’

Plaintiff in her brief relies upon the cases of City Coal Co. v. Marcus, 95 Conn. 454, 111 A. 857; Warthen v. Lamas, D.C. Mun.App., 43 A.2d 759, and Andrews v. Marshall Creamery Co., 118 Iowa 595, 92 N.W. 706, 60 L.R.A. 399, 93 Am.St.Rep. 412.

City Coal Co. v. Marcus, supra, is not in point. There the court sustained the contention of the tenant that by the terms of the lease he was entitled to an extension.

Warthen v. Lamas, supra, and Andrews v. Marshall Creamery Co., supra, turned upon statutes which provided that a tenant holding over and paying rent should be deemed to be holding by sufference or at will.

In the present case there was no rent fixed for the renewal. The lease provided that it may be renewed for an additional two years ‘at a rental that is agreeable to both the party of the first part and the party of the second part.’

In Decker v. Adams, 12 N.J.Law 99, 100, Chief Justice Ewing said:

‘As a general rule, where the term is for a fixed period of time, and the period has expired, the tenancy is determined, and the landlord may immediately maintain an ejectment to recover the possession.

‘When the...