Holton v. . Andrews

66 S.E. 212, 151 N.C. 340, 1909 N.C. LEXIS 268

• Court: Supreme Court of North Carolina
• Decided: November 24, 1909
• Status: Published

Opinion

Clark, C. J.

The premises were leased for one year, from 1 June, 1907, rent payable monthly. The lease contained this provision: “The parties of the first part bind themselves, upon the request of the party of the second part, in writing, to renew this lease, without change in terms, from year to year, for a period of four years.” On 1 June, 1908, the defendant continued in possession of the store, without making such request, in writing or otherwise, paying rent monthly, as before. In January, 1908, erroneously conceiving that he was therefore renter from month to month, the defendant gave due notice, as such, and vacated tbe premises on 1 February. Tbe lessor objected, and brings this action to recover tbe rent from 1 Feb-ruaryJo 1 June, less tbe rent from 23 April to 1 June. If tbe plaintiff’s testimony is true, that with reasonable diligence be could not rent tbe store till 23 April, be is entitled to recover rent from 1 February, 1909, to that date.

His Honor erred in bolding this to be a tenancy at will. Tbe requirement that tbe request for renewal should be in writing was in favor of plaintiff. If not given, be could have refused to renew. Tbe defendant, by continuing on, was presumed to be in for a year, as before, on tbe same terms as to time, price and monthly payments, and with a right to three years more if requested in writing. A case exactly in point is Scheelky v. Koch, 119 N. C., 80. Also, Harty v. Harris, 120 N. C., 408. Tbe defendant was no doubt misled into thinking that be was a renter from month to month by tbe payments being" monthly.

Error.