Biggs v. Stueler

48 A. 727, 93 Md. 100, 1901 Md. LEXIS 11

Opinion

Page, J.,

delivered the opinion of the Court.

The appellant on. May 2nd, 1895, leased to the appellee a dwelling-house situate in Baltimore City at $28.50 a month, payable in advance. By the terms of the lease, which was in writing, the tenancy was to terminate on the first of October following, without further notice, the lessee to have the privilege of renewing for six or twelve months, provided he gave the lessor thirty days’ notice of such intention. The appellee entered into possession of the premises under the lease, and so continued up to October 31st, 1899, when, without previous notice, he removed from and quit the premises.

On the part of the appellant evidence was offered tending to prove that about October 1st, 1895, the appellant reduced the rent to $26 a month, and it was then stipulated that the lease “ should run for another year.” It was also renewed in 1896, 1897 and 1898, and for the last-mentioned year the rent was reduced to $25 per month. There was no further renewals ; but after the first day of October, 1899, the appellee remained in possession until the thirty-first day of October, 1899. On vacating the premises on that date, the appellee sent the keys of the house to the appellant, who, thereupon wrote to the appellee as follows : “I feel greatly surprised, and indignant at this way of treating me. Our contract called for thirty days’ notice, and I beg leave to notify you that I can only receive the keys under protest, and that I shall be forced to rent the property for your account and risk, charging you with any loss on same, &c.” The appellant rented the property again on March 15; and to do that, he was compelled to make certain repairs. On the part of the appellee there was evidence tending to show that on the first day of October, 1895, he—the appellee—had refused to renew the lease, and thereafter had rented the property by the month. The wife of the appellee testified that about the fifth of September (it does not appear of what year), she told the appellant that unless “ he had certain faucets put in they would positively move out on November the xst.”

The case was tried before the Court, without the intervention of a jury, and the only exception is to the action of the Court upon the instructions asked for by the appellant. The appellee offered no prayers ; the appellant had seven, of which the first, second and seventh were granted and the others refused. By the third prayer, the appellant asked the Court to rule, that if “ after the expiration of the twelve months for which the original lease was renewed, the defendant remained in possession of said premises under said renewal, of the original lease after its expiration, paying rent, then by reason of such holding over the appellant became a tenant from year to year.” We understand this to mean that if after October 1st, 1896, there was a renewal of the lease for another year, and thereafter, that is after October 1st, 1897, the appellee remained in possession, he thereby became a tenant from year to year. This prayer ignores all the evidence touching the renewals of the lease after October 1st, 1897. Mr. Biggs testified that about October 1st, 1895, the rent was reduced, and the stipulation was made that the “ lease should run for another year,” and that thereafter the lease “ ran without change up to October, 1898, and then, the rent was again reduced, with the same understanding that it (the lease), would continue for another year.” If the jury accepted this evidence as true they might have been compelled to find that up to October, 1899, the appellee occupied the premises under successive renewals of the lease ; and on the other hand, if the statements of the appellee were adopted, then, that there was a tenancy by the month, which continued up to the time the appellee vacated the property. Now, if at the expiration of the “twelve months for which the original lease was renewed,” the appellee still remained in possession, “ under a renewal of the lease,” he would not thereby become a tenant from year to year, but for the definite period of one year, from October, 1897 (and so on, if there were subsequent renewals for each year, up to October 1st, 1899); that is, for the certain and definite period set forth by the terms of the lease and of the stipulation, of twelve months. In such case the tenancy would be one for years, and not a tenancy from year to year. When an estate is granted for one or more years, there will be created a tenancy for years, but if no particular period of time is limited for its duration, a tenancy from year to year will arise. 1 Taylor's Landlord and Tenant, sec. 54. If therefore, the tenant held over under successive renewals of the original lease, up to October 5th, 1899, he would be during that period, a tenant for years, and not a tenant from year to year. But if the tenant remained in possession, after the expiration of the term of years, that is after October 1st, 1899, with the consent of the landlord, but without a renewal of the lease, the law would imply a new renting, without a definite period for its termination, and a tenancy from year to year would arise. Hall v. Myers, 42 Md. 450. The prayer was therefore properly refused.

The fourth prayer was improper because under the proofs in the case, if there was a renewal at all, the duration of the term was fixed by the stipulation of the parties. The appellant testifies that ‘ ‘it was to continue for another year.” To the fifth prayer the appellee excepted specially, to the effect that there was “no evidence that the defendant never replied to, or dissented in any way, from the plaintiff’s letter of November 1st, 1899.” The prayer did not require that the jury should find this ; what was put to them was, that if they shall “further find that the defendant never replied to or dissented in any way from the above terms,” that is, from the terms contained in the plaintiff’s letter of November 1st. They were not required by the prayer to find that the appellee never replied to the appellant’s letter; but that he had not replied to, •or dissented from the terms contained in that letter. There was testimony that he did reply to the letter, and that he made no objection to, nor comment upon, the appellant’s renting the property on his account ;■ and that what he wrote in reply was, “an abusive letter.” Nor can it be sustained as an objection to the prayer that it requires the Court sitting as a jury, to find a question of law, viz., that the appellee was a tenant for an unexpired term. The Court in the first and second prayers had already defined what the facts were that were necessary for them to find there was a tenancy; and the fifth prayer meant no more than to require the Court to find a tenancy under those instructions previously given and also as matter of fact that the term had expired. The proposition ■of law contained in this prayer is that if the term was unexpired on October 31st, 1899, and on that day the appellee sent the key to the appellant in his absence and that on the next day the .appellant wrote to the appellee that he “could only receive the keys under protest,” and “would be forced to rent the property for his account and risk,” “charging him with any loss on same,” and that the appellee never dissented in any way from those terms, then the Court sitting as a jury would be authorized to infer from the defendant’s silence that he assented to the terms thus presented.

The sixth prayer was to the effect, in substance, that there icould be no surrender of the premises during the term, unless both parties agreed thereto, and that without such assent, the sending of the key and the vacating of the house by the appellee do not exonerate the appellee from the payment of rent. The general proposition as to the surrender seems to have had the concurrence of the lower Court, because by the seventh prayer which was granted the Court ruled that the leaving of the key by the appellee, the letter of the appellant, his entry upon the premises, and making • necessary repairs, and his placing thereon a sign for rent, did not amount to an acceptance of a surrender, provided such acts of the appellant are referable to the motives set forth in his letter, and not to the intention of accepting a surrender. Both of these prayers, the fifth and sixth, are based on the theory that before a surrender could take place, both the landlord and tenant must assent thereto. On principle, it would seem clear that a contract of renting, like any other, cannot be rescinded without the assent of both parties. Such assent may indeed be expressed or implied from such acts as would reasonably indicate that the parties have agreed that the tenant shall abandon the premises and the landlord assume its possession. This seems to accord with most, if not all, of the adjudicated cases. Talbot v. Whipple, 14 Allen, 177; Hanham v. Sherman, 114 Mass. 19; Underhill v. Collins, 132 N. Y. 271; Auer v. Penn, 99 Pa. 275; Bedford v. Terhune, 30 N. Y. 463.

The acts upon which the appellee in this case relies to prove a surrender are the acceptance of the keys by the appellee, the repairs to the house, and the re-letting. But those are insufficient of themselves to show acceptance, unless under all the circumstances they are of such a character as to show a purpose on the part of the tenant to vacate, and on the part'of the landlord to resume possession, to the exclusion of the tenant. If at the time when the keys were returned to him the landlord notified the tenant that he received them under protest, would re-rent and hold him for rent, and the defendant assented to such renting, the presumption which might otherwise arise that there was an acceptance of the property would not be reasonable; and if under such circumstances he rented the property it would be plain that he would do so for the lessee’s interest, and not with the intent of accepting a surrender. But if the landlord without such assent on the part of the tenant does an act such as taking possession of, and re-letting the premises, which is utterly inconsistent with the relation of landlord and tenant, then, a surrender is im plied, and the tenancy is at an end. Kinsey v. Minnick, 43, Md. 112; Beall v. White, 94 U. S. 382; Bedford v. Terhune, 30 N. Y. 463.

The sixth prayer required the jury to find that there was an assent on the part of the appellant before a surrender could take effect, and should therefore have been granted. There was evidence, as we have said, tending to show that the appellee did not reply to the terms of the letter of the appellant of November 1st, and did not dissent therefrom, and such silence by the other is relied on to support the legal inference of his acquiescence. But it is clear both on principle and authority that we have no right to indulge in the assumption that the letters above referred to had the force and effect of verbal statements made in the presence of the defendant’s, officers. The rule is precisely to the contrary. It is well expressed in Learned v. Tillotson, 97 N. Y. 12, as follows: “We think that a distinction exists between the effect to be given to oral declarations made by one party to another, which, are in answer to or contradictory of some statement made by the other party, and a written statement in a letter written by such party to another. It may well be that, under most circumstances, what is said to a man to his face which conveys the idea of an obligation on his part to the person addressing him, or on whose behalf the statement is made, he is, at least in some measure, called upon to contradict or explain ; but a failure to answer a letter is entirely different, and there is no rule of law which requires a person to enter into a correspondence with another in reference to a matter in dispute between them, or which holds that silence should be regarded as an admission against the party to whom the letter is addressed. Such a rule would enable one party to obtain an advantage over another, and has no sanction in the law.” To the same effect are Bank of British N. A. v. Delafield, 126 N. Y. 418, 27 N. E. 797, and Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385.

The fifth prayer founds the assent of the appellee entirely upon his silence in reference to the proposal in the appellant’s letter of November the first, and this was error. This prayer was properly refused.

(Decided March 7th, 1901.)

For error in refusing to grant the appellant’s sixth prayer the judgment must be reversed.

Judgment reversed with costs and cause remanded and new trial.