Kendall v. Moore , 30 Me. 327 ( 1849 )

Wells, J.

— It is not necessary to decide the question, whether where a lease is made to two, and but one occupies the premises and holds over after the expiration of the lease, the other can be holden for the rent accruing after its termination. For the terms of the lease, in this case, imply a continuing liability after the expiration of the year, for such further dime as the lessees may hold the premises.

The lease contains the following provisions, “And the ‘lessees do covenant to pay the rent in quarterly advance payments, and to quit and deliver up the premises to the lessors ■or their attorney, peaceably and quietly, at the end of the term aforesaid, in as good order and condition, reasonable use and wearing thereof or inevitable accident excepted, as the >same are or may be put into, by the lessors, and for such fwttker time as the lessees may hold the same,” &c.

In the printed form, which was used, the part relating to the taxes, which immediately preceded the last clause above mentioned, was erased.

The contract must be taken as the parties have made it, and they must be bound by that interpretation of which it is fairly susceptible. After having modified it, they are not at liberty to say, that it does not mean what the language implies.

The phrase “ and for such further time as the lessees may hold the same,” embraces the obligation to deliver up the premises in such state as the lease required, at some period after the year, if they held them beyond that time. And there would seem to be a like reason for extending the obligation to the payment of rent, in order to furnish security for it by an express covenant, as to a delivery of the premises. But it is not by its terms restricted to either, and must therefore include both the payment of rent and delivery of the premises.

It is contended, that by holding over and the payment of the rent for the first quarter of the second year, there was a tacit renewal of the contract, so that the defendants would be liable for the rent, after they vacated the premises, for the second year, or until the plaintiffs finding them vacant took possession.

A holding over by the consent of the parties was a renovation of the contract, by the rules of the common law. Right v. Darby, 1 T. R. 160. But by our statutes a tenant holding over by consent, after the expiration of the term, is considered as a tenant at will only, and is entitled to notice to quit. Chap. 91, § 30; chap. 95, § 19; chap. 128, § 5; Wheeler v. Cowan, 25 Maine, 283.

There was no time stated in the lease, beyond the year, in which the defendants were to hold the premises, but they were at liberty by it to leave them at any time after the year had expired, and could not therefore be liable for rent after their occupation had ceased. Moore occupied the premises until December, 1844, when he left them, the other defendant never having entered upon them. For the time Moore had possession the rent was paid except that due for the last quarter, which the plaintiffs are entitled to recover, with interest from the time when it was payable.