De Young v. Buchanan , 10 G. & J. 149 ( 1838 )

Spence, Judge,

delivered the opinion of the court.

■ The action of assumpsit, for use and occupation, can be sustained where it is based upon a contract either express or implied; and unless it be thus founded, it cannot be maintained. Birch vs. Wright, 1 Term Rep. 387.

In the case now under consideration, the term created by the written agreement, was ended and determined on the 20th day of August, 1834, and De Young, the tenant, remained in the possession and enjoyment of the premises, from the expiration of the lease until some time in the month of May, 1835.

It seems at this day to be well settled law, that when a tenant for a term of years, or from year to year, holds over after the expiration of the term, without any new stipulations between the parties, he impliedly holds subject to all the covenants in the lease, which are applicable to his new situation. Digby vs. Atkinson and Another, 4 Camp. Rep. 275. Doe on demise of Riggs vs. Bell, 5 Term Rep. 471. 13 John. Rep. 297.

If this be a correct view of the law, it follows as a necessary and unavoidable conclusion, that in the absence of any new and express stipulations in such cases, and where the relation of landlord and tenant does exist, the law will imply those terms, which are found in the contract which has expired.

We are thus brought to the inquiry whether the record in this cause furnishes any evidence of any new conditions or supplemental contract, which will ascertain and define the terms of the relation between these parties; for upon this proposition alone it must depend whether the county court erred or not, in rejecting the defendant’s prayer.

The material evidence in this cause, touching the terms and character of the relation between these parties, subsequent to the 20th of August, 1834, .is to be found in the written correspondence of George H. JYewman, the plaintiff’s agent, bearing date the 20th July, 1834, and the defendant’s answer thereto of the 30th of the same month and year. JYewman, the agent of the plaintiff, in his note of the 20th July, 1834, uses this unequivocal language to De Young, the defendant: “ Mrs. Buchanan [will] require you to give her possession of the property on the 21st of August next, when your lease expires, or pay her a rent of one thousand dollars per annum, in quarterly payments, from and after the above date.” He requests a prompt answer to this note, and concludes as follows : “ If I do not hear from you definitely, on or before the 31st inst. I shall advertise the property for rent on the 1st of August, and consider myself at liberty to lease it to any other person, without further reference to you.” In reply to this note, De Young says: “ I beg to state that the rent I pay at present, is fully equal to the value of the property, and as much as I, or any one else, can afford to pay at these times; as soon as they improve, I will be ready to treat with you about an increase of rent, but for the next year the rent will have to stand at its present price.”

Is there one expression to be found in this correspondence, from which the human mind can deduce the most remote semblance of a contract, or agreement; it is nothing more or less than a demand on the one side that the rent shall be increased from $600 per annum, the former rent, to $1000, with a threat that the tenant will otherwise be turned out; with as prompt a declaration on the other side, that six hundred dollars is the value of the property, and as much as he could or would pay. We think the conclusion that there was not any new agreement, or contract, proved by this correspondence, is so clear, that no argument on our part can make it more plain.

It is admitted, and indeed the proof on the record shewing, that at the time the suit was brought no part of the six hundred dollars, the former rent, was in arrear; that the rent for the quarter ending the 20th of February, 1835, was then paid, and as this was all the plaintiff would have been entitled to recover in this action, and under this proof, we are of the opinion the court below erred in not granting the defendant’s prayer, and therefore reverse the judgment, with costs.

JUDGMENT REVERSED.