Mack v. Eckerlin

Ohio Circuit Courts

Mack v. Eckerlin

17 Ohio C.C. Dec. 133

DecidedJanuary 27, 1905

StatusPublished

This text of 17 Ohio C.C. Dec. 133 (Mack v. Eckerlin) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mack v. Eckerlin, 17 Ohio C.C. Dec. 133 (Ohio Super. Ct. 1905).

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Opinion

PER CURIAM.

The original action was one in forcible detainer in which the justice of peace awarded judgment of restitution of the premises to the defendant in error. To that judgment error was prosecuted to the court of common pleas, and to that judgment of affirmance, error is now prosecuted in this court.

The defendant in error leased to the plaintiff in error. certain premises for a term of three years, commencing May 1, 1901, “with the .privilege of renewal at the expiration of the said three years for another three years at the same rental. ’ ’

The first alleged error is that the notice to quit the- premises was not served at least three days before commencing the action.

The notice was served on May 10, 1904; the suit was commenced on May 14, 1904. Laning R. L. 10184 (R. S. 6602) requires only that the notice shall be served at least three days before commencing an action. In this case that was done but it is contended that in the notice it was stated that “your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me.” This may be an implied promise that the tenant would be required to leave the premises on May 14, but it is not binding upon the promisor for the reason that it is unsupported by any consideration.

It is also contended that, under this lease no notice was required of the intention of the tenant to renew the lease, but under the terms of this lease, we think the notice of the tenant’s election to renew the lease should have been given at or before- the expiration of the term. 18 Am. & Eng. Enc. Law (2 ed.) 692.

We are asked also to review the weight of the testimony upon the question whether the lease was in fact renewed by the acceptance of rent for a term of six months after the expiration of the term.

, Under Lan. R. L. 10192 (R, S. 6610), a reviewing court is not authorized to reverse the judgment Upon the ground that it is not sustained by sufficient evidence. State v. Wood, 22 Ohio St. 537.

Judgment affirmed.

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PER CURIAM.

The original action was one in forcible detainer in which the justice of peace awarded judgment of restitution of the premises to the defendant in error. To that judgment error was prosecuted to the court of common pleas, and to that judgment of affirmance, error is now prosecuted in this court.

The defendant in error leased to the plaintiff in error. certain premises for a term of three years, commencing May 1, 1901, “with the .privilege of renewal at the expiration of the said three years for another three years at the same rental. ’ ’

The first alleged error is that the notice to quit the- premises was not served at least three days before commencing the action.

The notice was served on May 10, 1904; the suit was commenced on May 14, 1904. Laning R. L. 10184 (R. S. 6602) requires only that the notice shall be served at least three days before commencing an action. In this case that was done but it is contended that in the notice it was stated that “your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me.” This may be an implied promise that the tenant would be required to leave the premises on May 14, but it is not binding upon the promisor for the reason that it is unsupported by any consideration.

It is also contended that, under this lease no notice was required of the intention of the tenant to renew the lease, but under the terms of this lease, we think the notice of the tenant’s election to renew the lease should have been given at or before- the expiration of the term. 18 Am. & Eng. Enc. Law (2 ed.) 692.

We are asked also to review the weight of the testimony upon the question whether the lease was in fact renewed by the acceptance of rent for a term of six months after the expiration of the term.

, Under Lan. R. L. 10192 (R, S. 6610), a reviewing court is not authorized to reverse the judgment Upon the ground that it is not sustained by sufficient evidence. State v. Wood, 22 Ohio St. 537.

Judgment affirmed.

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17 Ohio C.C. Dec. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-eckerlin-ohiocirct-1905.