Williams v. Apothecaries' Hall Co.

• Decision Date: 05 March 1908
• Citation: 80 Conn. 503,69 A. 12
• Court: Connecticut Supreme Court
• Parties: WILLIAMS v. APOTHECARIES' HALL CO.

69 A. 12

80 Conn. 503

WILLIAMS

v. APOTHECARIES' HALL CO.

Supreme Court of Errors of Connecticut.

March 5, 1908.

Error from City Court of Waterbury; Frederick Peasley, Judge.

Action of summary process by the Apothecaries' Hall Company against Samuel P. Williams. Judgment for plaintiff, and defendant brings error. Affirmed.

Charles G. Root, for plaintiff in error. Lucien F. Burpee and Terrence F. Carmody, for defendant in error.

PRENTICE, J. This action of summary process was brought by complaint in the usual form. It sets up a lease for the term of one month, from January 1, 1898, for the monthly rent of $35, possession taken thereunder by the lessee, the plaintiff in error, and the continuance of such possession down to the commencement of the action, the nonpayment of the rent due on August ], 1907, a notice to quit on or before September 3, 1907, given on August 24, 1907, and the lessee's retention of possession, although the lease had expired by lapse of time, and the required notice to quit had been given. The answer includes a general denial and a special defense. This defense sets up that the plaintiff, on or about January 1, 1898, leased the premises to the defendant, reserving an annual rental of $400; that in the lease no time for its termination was agreed upon; that the defendant entered into possession, and has ever since remained in possession thereunder, paying all the rent at $400 per year due as agreed to date; that on April 13, 1907, when the rent was paid in full to April 1, 1907, it was agreed that the defendant should continue in possession under said lease until the question then in the courts, as to whether certain capital stock of the plaintiff corporation formerly belonging to one Rice, deceased, should be sold as a whole or be divided among the legatees of Rice, should be determined and said stock be either sold or divided; that in the meantime the defendant should pay his agreed rent either monthly or quarterly; and that said question has not been determined or said stock sold or divided.

Upon the issues thus framed the matter in controversy became resolved upon the trial into the single issue conceded to be controlling of the judgment as to whether the defendant's tenancy in August, 1907, was one such as the complaint averred it to have been, and as such terminable at the end of that month, or one such as was set out in the special defense. The court, in the course of its instructions, denominated the tenancy created by the facts alleged in the complaint as one from month to month, and that created by the facts alleged in the defense as one from year to year, and then told the jury, in substance, that the issue was practically narrowed down to one as to whether the defendant's tenancy was one from month to month, as the plaintiff claimed, or one from year to year, as the defendant claimed. The court was correct in describing the tenancy created by the facts set up in the complaint as one from month to month, and in assuming, as it did in its later instructions, that such tenancy was by proper notice terminable at the end of any month for which the tenancy had come into existence. Section 4043 of the General Statutes of 1902 provides that no holding over after the expiration of the term of a lease shall be evidence of an agreement for a further lease. Where, however, there is an express lease for a month and a continuance in possession by the lessee after its termination, which is acquiesced in by the lessor as evidence by his verbal consent or conduct, a tenancy is thereby created which the law will regard as one from month to month. Byxbee v. Blake, 74 Conn. 607, 610, 51 Atl. 535, 57 L. R. A. 222. Such a tenancy is not regarded as a continuous tenancy, but as one for recurring monthly periods recommencing each month. Hunter v. Frost, 47 Minn. 1, 49 N. W. 327; Gaudy v. Jubber, 5 B. & S. 78; Taylor's Landlord & Tenant, § 219.

The instructions that the tenancy set out in the special defense was originally one from year to year were also correct. When one enters and occupies under a lease for an indefinite time, reserving an annual rental which is paid, the tenancy is in legal effect one from year...