Willoughby v. Atkinson Furnishing Co.

• Decision Date: 22 August 1899
• Citation: 93 Me. 185,44 A. 612
• Parties: WILLOUGHBY v. ATKINSON FURNISHING CO.
• Court: Maine Supreme Court

44 A. 612

93 Me. 185

WILLOUGHBY

v. ATKINSON FURNISHING CO.

Supreme Judicial Court of Maine.

Aug. 22, 1899.

(Official.)

Report from supreme judicial court, Knox county.

Action by Jonathan S. Willoughby against the Atkinson Furnishing Company. Remanded.

This was an action of assumpsit upon an account annexed, brought under Rev. St. c. 94, § 10, to recover certain rents claimed to be due under a written lease, and also for damages done to the plaintiff's premises during their occupancy by the defendant.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, WISWELL, and STROUT, JJ.

D. N. Mortland and M. A. Johnson, for plaintiff.

C. E. & A. S. Littlefield, for defendant.

WISWELL, J. Action of assumpsit under Rev. St. c. 94, § 10, to recover rent and damages to the premises rented.

1. The action is upon an account annexed, in which, among others, there is an item of rent for three months from December 1, 1896, to February 28, 1897, $490.64, and an item for damages to the premises, and for failure to comply with the terms of a written lease by restoring the building to the same condition as when rented, of $2,094.57. Before the commencement of the trial the plaintiff moved to amend his declaration by so changing the item for rent that it would read from December 1, 1896, to May 31, 1897, $980.33, and by adding to the item for the cost of restoring the premises to the condition in which they were when leased, the sum of $600.

The report of the case contains a stipulation that the court shall pass upon the question as to whether these amendments are allowable. We think that they are clearly not Courts are liberal in the allowance of amendments, and by the statute (Rev. St. c. 82, § 10) mere defects in form and circumstantial errors and mistakes may be amended. But this statute does, not permit of an amendment which will add a new or different cause of action, and this court has in numerous cases held that such amendments are not allowable. That is exactly what is desired in this case. The plaintiff sues to recover a quarter's rent ending February 28th. The amendment proposed would allow him to recover another quarter's rent ending May 31st,—an entirely new cause of action, and therefore cannot be allowed. This is also true as to the other amendment offered. The statute allowing the maintenance of this action requires that the account annexed to the writ should specify "the items and amount claimed." There is such a specification of items in this case, in which are enumerated the several sums expended and estimated for the purpose of restoring this building to its condition when rented, the aggregate of which items is exactly the amount claimed under this branch of the case. To increase that amount would be to add a new sum for an Item not originally specified nor sued. It would consequently add a new cause of action, and is consequently not allowable.

2. As to the claim for rent. On August 15, 1893, the defendant took a written lease of the premises for the term of three years from September 1, 1893, "with the privilege, at the end of said term, of re-leasing for a term of ten years, or any part thereof, at the same yearly rental." This term expired September 1, 1896. But the defendant company continued to occupy the premises until December 1st following, at which time it vacated them, and tendered the keys to the plaintiff, who refused to accept them, or to take possession of the building. The stipulated rent was paid to December 1st. Whether or not the defendant is liable for any rent after that date depends upon the nature of the tenancy subsequent to the expiration of the term of the lease. If the defendant was a tenant at will, then by statute (Rev. St. c. 94, § 2) the tenancy could only be terminated by mutual consent or by 30 days' notice in writing given for that purpose.

But during the original term, upon August 31, 1896, the defendant gave written notice to the plaintiff as follows: "In accordance with the option contained in our lease of the Willoughby Block, we desire to notify you that we will release the said block for the space of three months from the expiration of the lease." It is claimed that this was a re-leasing; that thereby the lease was extended for three months; and that the term expired, without further notice or other act, upon December 1st, the day upon which the defendant vacated the store, tendered the keys to the plaintiff, and up to which time the payment of rent is admitted.

We think that this contention must be sustained. The lease gave to the defendant the option of re-leasing the premises "for a term of ten years, or any part thereof."

The tenant seasonably and formally gave written notice to the landlord of his election to continue the tenancy under the lease for a further period of three months. This, accompanied by a continuation of possession, was sufficient for the purpose. According to the weight of authority, the clause in the lease already quoted should be construed as a present demise to take effect in the future at the option of the lessee.

In Sweetser v. McKenney, 65 Me. 235, the lease was "for five years, and as much longer as he desires." The court held that between the parties to such lease the right of occupation by the lessee, so long as he...