Opinion by
Wickham, J.,
The plaintiff in this case leased to the defendants, by a writ[139]*139ing, dated January 23, 1891, certain premises in the city of Pittsburg. The following clause of the lease gave rise to the present controversy, to wit: “The said party of the first part ■ doth hereby lease and let, unto the said parties of the second part, from the 26th day of January, 1891, for and during the term of one year, two months and six days, with the privilege of remaining in possession until the 1st day of April, 1896, for the annual rental of $600, payable as follows,' viz: $100 on April 1, 1891, and thereafter $150 on the first days of July, October, January and April of each and every year during said term, until the whole amount of said rent is paid.”
There was thus created a certain term, ending on April 1, 1892, with the option of a renewal, on the part of the lessees for another term of four years, on the same agreements and stipulations, except the covenant of renewal: Cairns v. Llewellyn, 2 Pa. Superior Ct. 599. No question of rescission or cancelation was raised by the evidence, the only proper inquiry being whether or not the lessees elected to renew, it being their privilege and not the lessor’s to decide this matter. Nor was the •case affected by the principles which apply to a technical surrender, that is, a yielding up of the demised premises and an acceptance thereof by the lessor. It was a matter of no moment whether the lessor accepted or not, provided that the lessees gave up possession, at the end of the first term. This, however, they did not do, but remained in possession until June 1, 1892.
Without explanation, their remaining over would be conclusive evidence of an election to hold for four years longer: McBrier v. Marshall, 126 Pa. 390; Cairns v. Llewellyn, supra, and authorities therein cited. It may be remarked here that the decision in Gillion v. Finley, 22 W. N. C. 124, cited for the appellants in support of the contrary view, is not in harmony with later decisions of our Supreme Court. But the defendants allege, and this is conceded, that, before the first term ended, they notified the plaintiff that they would not accept the second. They further aver that in March, 1892, they made a special arrangement with the plaintiff’s agent to hold over, at the same rent, until the building they were then erecting would be ready for their occupancy, perhaps two or three months after April 1,1892, and if this be true, their retention of the premises [140]*140would, of course, be attributable to tbe new contract, instead of to their right under the option.
The jury should have been instructed, that if the agent entered into this agreement, and it was within the scope of his employment, their verdict should be for the defendants, otherwise the plaintiff was entitled to recover. There was nothing more in the case. The plaintiff’s first, second and third points, instead of being affirmed, as they were, should have been refused. The first is so framed as to lead the jury to infer that, unless there was a rescission or surrender, after April 1, 1892, the defendants were liable. It is at least so doubtful in its meaning as to be confusing. As said before, the question of rescission is not in the case. It was merely a matter of acceptance or refusal of the option, on the part of the defendants, and the words “rescission,” “cancelation,” and “surrender,” in the sense wherein they were used, were likely to mislead.
The second point is open to the same objections as the first, and to the further one, that it assumes that the lease was for a period exceeding three years. As we have already indicated, the lease was what it purported to be on its face, that is, for one year, two months and six days, with a provision that the lessees, at their own pleasure, might extend it for a further term of four years.
The third point, besides being liable to some of the objections that lie to the first and second, calls for too high a degree of proof in support of the defense. It was not necessary to establish it by “ clear, precise and indubitable evidence,” a preponderance was enough. The defendants were not seeking to modify, add to, contradict, or rescind the written lease. The oral agreement set up was independent of it, and was made after the defendants had notified the plaintiffs, as is admitted, of their intention not to renew, the notice having been given and the agreement made, if made at all, before April 1, 1892. The defendants, even if they had not given the notice, were still entirely free, so far as accepting or refusing the option was concerned, and the oral agreement would in itself be a refusal. Of course, if their story as to this agreement were rejected by the jury, their subsequent holding over, notwithstanding their previous notice, impliedly created a new term.
M. Gr. Wasson, with him W. If. Jennings, for appellants.—
The judgment of the lower court ought to be reversed if for no other reason than because of the error manifest in the affirmance of the plaintiff’s third point.
The defendants should not have been held to measure their proofs by this standard: Spencer v. Colt, 89 Pa. 314; Hain v. Kalbach, 14 S. & R. 158 ; Woods v. Farmare, 10 Watts, 195 ; McGinity v. McGinity, 63 Pa. 38; Plumer v. Guthrie, 76 Pa. 441; Hart v. Carrol, 85 Pa. 508.
Parol agreements of like character do not infringe the rule that extrinsic verbal evidence is not admissible to contradict or alter a written instrument, neither are they in violation of the statute of frauds, and are supported by judicial authority: 1 Greenleaf on Evidence, par. 303; Kiester v. Miller, 25 Pa. 481; McBrier v. Marshall, 126 Pa. 390; McCauley v. Keller, 130 Pa. 53; Harvey v. Gunsberg, 148 Pa. 294; McClelland v. Rush, 150 Pa. 57; Walker v. Githens, 156 Pa. 178; Washburn on Real Property.
J. I. Buchanan of Montooth Bros. Buchanan, for appellee.
The words “ clear, precise and indubitable,” have often been used by the courts in describing the kind of evidence necessary in such cases: Spencer v. Colt, 89 Pa. 314; Hart v. Carroll, 85 Pa. 508; Sacks v. Schimmel, 3 Pa. Superior Ct. 426.
The first, second, third and fifth specifications of error are' sustained.
Judgment reversed and a-venire facias de novo awarded.
A motion for reargument being duly allowed, a reargument was had before the court in Philadelphia, November 1, 1897.
Opinion on Reabgttment by Wickham, J., December 13, 1897:
Owing to a misapprehension as to dates, a portion of the opinion heretofore handed down in this case, is inapplicable to the facts. It appears that the defendants’ notice of their intention to quit the leased premises was given, and the alleged new contract made, long after the second term had commenced. The learned judge of the court below was, therefore, right in ■ [142]*142holding that the whole controversy centered in the surrender and acceptance’ set up by the defendants.
If necessary, the case of Gillion v. Finley, 22 W. N. C. 124, so strongly relied on by the defense, can be distinguished, in its facts, from the one in hand. In Gillion v. Finley, the lease was for “ the term of one year with the privilege of three years from first day of April, A. D.
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Opinion by
Wickham, J.,
The plaintiff in this case leased to the defendants, by a writ[139]*139ing, dated January 23, 1891, certain premises in the city of Pittsburg. The following clause of the lease gave rise to the present controversy, to wit: “The said party of the first part ■ doth hereby lease and let, unto the said parties of the second part, from the 26th day of January, 1891, for and during the term of one year, two months and six days, with the privilege of remaining in possession until the 1st day of April, 1896, for the annual rental of $600, payable as follows,' viz: $100 on April 1, 1891, and thereafter $150 on the first days of July, October, January and April of each and every year during said term, until the whole amount of said rent is paid.”
There was thus created a certain term, ending on April 1, 1892, with the option of a renewal, on the part of the lessees for another term of four years, on the same agreements and stipulations, except the covenant of renewal: Cairns v. Llewellyn, 2 Pa. Superior Ct. 599. No question of rescission or cancelation was raised by the evidence, the only proper inquiry being whether or not the lessees elected to renew, it being their privilege and not the lessor’s to decide this matter. Nor was the •case affected by the principles which apply to a technical surrender, that is, a yielding up of the demised premises and an acceptance thereof by the lessor. It was a matter of no moment whether the lessor accepted or not, provided that the lessees gave up possession, at the end of the first term. This, however, they did not do, but remained in possession until June 1, 1892.
Without explanation, their remaining over would be conclusive evidence of an election to hold for four years longer: McBrier v. Marshall, 126 Pa. 390; Cairns v. Llewellyn, supra, and authorities therein cited. It may be remarked here that the decision in Gillion v. Finley, 22 W. N. C. 124, cited for the appellants in support of the contrary view, is not in harmony with later decisions of our Supreme Court. But the defendants allege, and this is conceded, that, before the first term ended, they notified the plaintiff that they would not accept the second. They further aver that in March, 1892, they made a special arrangement with the plaintiff’s agent to hold over, at the same rent, until the building they were then erecting would be ready for their occupancy, perhaps two or three months after April 1,1892, and if this be true, their retention of the premises [140]*140would, of course, be attributable to tbe new contract, instead of to their right under the option.
The jury should have been instructed, that if the agent entered into this agreement, and it was within the scope of his employment, their verdict should be for the defendants, otherwise the plaintiff was entitled to recover. There was nothing more in the case. The plaintiff’s first, second and third points, instead of being affirmed, as they were, should have been refused. The first is so framed as to lead the jury to infer that, unless there was a rescission or surrender, after April 1, 1892, the defendants were liable. It is at least so doubtful in its meaning as to be confusing. As said before, the question of rescission is not in the case. It was merely a matter of acceptance or refusal of the option, on the part of the defendants, and the words “rescission,” “cancelation,” and “surrender,” in the sense wherein they were used, were likely to mislead.
The second point is open to the same objections as the first, and to the further one, that it assumes that the lease was for a period exceeding three years. As we have already indicated, the lease was what it purported to be on its face, that is, for one year, two months and six days, with a provision that the lessees, at their own pleasure, might extend it for a further term of four years.
The third point, besides being liable to some of the objections that lie to the first and second, calls for too high a degree of proof in support of the defense. It was not necessary to establish it by “ clear, precise and indubitable evidence,” a preponderance was enough. The defendants were not seeking to modify, add to, contradict, or rescind the written lease. The oral agreement set up was independent of it, and was made after the defendants had notified the plaintiffs, as is admitted, of their intention not to renew, the notice having been given and the agreement made, if made at all, before April 1, 1892. The defendants, even if they had not given the notice, were still entirely free, so far as accepting or refusing the option was concerned, and the oral agreement would in itself be a refusal. Of course, if their story as to this agreement were rejected by the jury, their subsequent holding over, notwithstanding their previous notice, impliedly created a new term.
M. Gr. Wasson, with him W. If. Jennings, for appellants.—
The judgment of the lower court ought to be reversed if for no other reason than because of the error manifest in the affirmance of the plaintiff’s third point.
The defendants should not have been held to measure their proofs by this standard: Spencer v. Colt, 89 Pa. 314; Hain v. Kalbach, 14 S. & R. 158 ; Woods v. Farmare, 10 Watts, 195 ; McGinity v. McGinity, 63 Pa. 38; Plumer v. Guthrie, 76 Pa. 441; Hart v. Carrol, 85 Pa. 508.
Parol agreements of like character do not infringe the rule that extrinsic verbal evidence is not admissible to contradict or alter a written instrument, neither are they in violation of the statute of frauds, and are supported by judicial authority: 1 Greenleaf on Evidence, par. 303; Kiester v. Miller, 25 Pa. 481; McBrier v. Marshall, 126 Pa. 390; McCauley v. Keller, 130 Pa. 53; Harvey v. Gunsberg, 148 Pa. 294; McClelland v. Rush, 150 Pa. 57; Walker v. Githens, 156 Pa. 178; Washburn on Real Property.
J. I. Buchanan of Montooth Bros. Buchanan, for appellee.
The words “ clear, precise and indubitable,” have often been used by the courts in describing the kind of evidence necessary in such cases: Spencer v. Colt, 89 Pa. 314; Hart v. Carroll, 85 Pa. 508; Sacks v. Schimmel, 3 Pa. Superior Ct. 426.
The first, second, third and fifth specifications of error are' sustained.
Judgment reversed and a-venire facias de novo awarded.
A motion for reargument being duly allowed, a reargument was had before the court in Philadelphia, November 1, 1897.
Opinion on Reabgttment by Wickham, J., December 13, 1897:
Owing to a misapprehension as to dates, a portion of the opinion heretofore handed down in this case, is inapplicable to the facts. It appears that the defendants’ notice of their intention to quit the leased premises was given, and the alleged new contract made, long after the second term had commenced. The learned judge of the court below was, therefore, right in ■ [142]*142holding that the whole controversy centered in the surrender and acceptance’ set up by the defendants.
If necessary, the case of Gillion v. Finley, 22 W. N. C. 124, so strongly relied on by the defense, can be distinguished, in its facts, from the one in hand. In Gillion v. Finley, the lease was for “ the term of one year with the privilege of three years from first day of April, A. D. 1885, at the rent of two hundred and four dollars per year to be paid in twelve monthly portions.” Nothing was said as to the three years constituting an' integral term, and it was held that the language used meant, that the tenant had the right to remain from year to year, not exceeding three years.
In the present case, however, the lessees are given the privilege of holding from April 1, 1891, the end of the definite term, “ until the first day of April, 1896,” and this second period was evidently in the minds of the parties when they use the words “ during said term ” in the clause fixing the times for the payment of the rent. The lessees were given the right to hold for and during the continuous period of time intervening between April 1, 1891, and April 1, 1896. This is the plain and obvious meaning of the language used. When they accepted the option, they at once took this integral term and not a portion thereof, nor a mere tenancy from year to year.
We feel obliged to adhere to our original view respecting the degree of proof requisite to establish the surrender. Of course the agreement, as to this matter, should be clear and explicit. If it be of that character, we think that it is enough that it, and the landlord’s acceptance, be established by a fair and full preponderance of the evidence. This is not an attempt to reform, modify or contradict a written instrument, but an effort to prove a neur and executed contract based on a new consideration, namely, the restoring to the landlord, of the leased premises: 1 Greenl. Ev. 303; Malone v. Dougherty, 79 Pa. 46. Nor is it an attempt to escape the operation of the statute of frauds. In the language of Chief Justice Thompson in Pratt v. Richards Jewelry Co., 69 Pa. 53, “ I cannot see wherein the statute' of frauds had anything to do with it.” So also in Auer v. Penn, 92 Pa. 444, it was said: “ The fact that a leáse is for a longer term than three years does not prevent a rescission thereof, by agreement of the parties, when accompanied by a surrender of [143]*143the term and possession, by the tenant to the landlord, and the acceptance thereof by the latter. It is not like a sale and transfer, to a stranger, of an interest in land greater than a term of three years, and therefore is not within the statute of frauds. It is a yielding up, to the reversioner, the limited estate derived from him whereby the future tenancy is rescinded. The relation of landlord and tenant is thereby ended.”
There is no reason, therefore, for requiring the exceptionally high measure of proof necessary to take a case out of the statute, or to reform a writing. The degree of evidence that would support an allegation of the termination of the tenancy, or suspension of rent as the result of forfeiture, eviction or abandonment, ought, on principle, to be sufficient.
It is true, that in Hooks v. Forst, 165 Pa. 238, the court below told the jury that the evidence of surrender must be clear, precise and indubitable. As the defendants, who were: the parties likely to be injured by this instruction, prevailed at the trial, they had no occasion to complain of it elsewhere. It is significant, however, that the Supreme Court uses language in referring to the instruction, which contains some ground for the inference that, in the opinion of that tribunal, the plaintiffs had been, if anything, too favorably treated.
It is due to the learned trial judge to say that, in his general charge, he laid down the correct rule as to the measure of proof-required of the defendants, but unfortunately this was nullified by his later (and, perhaps, inadvertent) affirmance of the plaintiff’s third point. Because of this error, we are compelled to allow our judgment, heretofore rendered, to stand.