Clarke v. Merrill , 51 N.H. 415 ( 1871 )

Ladd, J.

The lease was a sufficient lease for ten years from October 17, 1865, at the election of the lessee ; and the second five years of the term was not created by the election, but by grant of the original lessor, Whittemore. Hall v. Spaulding, 42 N. H. 259; Ranlet v. Cook, 44 N. H. 512.

This plaintiff is not in a position to claim that the lease is invalid as to him for want of record. He had full notice of its existence, and of the defendant’s rights under it, at the time he took 1ns own lease — June 20, 1870 — which was expressly made subject to that of the defendant.

Under these circumstances, to hold that his rights against the defendant are larger than those of the original lessor, Whittemore, would be to disregard a very well known and elementary principal of law, as well as to overrule repeated adjudications of our own court.

The lease to the defendant was in terms for five years, with the right to extend the term five years more “ if the lessee shall so elect at the expiration of said term.” Nothing, is said about notice to the lessor of the election, whether it was to be verbal or in writing, whether by words or acts.

Suppose the lessee at the expiration of the first five years had quit the premises, sent the key to the landlord, and left the country, would there be any difficulty in holding such acts to be sufficient notice of his intention not to occupy or pay rent for another five years ? On the other hand, why was not his continuing in the possession equally significant and equally effective as notice of liis ’purpose to extend the lease and occupy for the remaining five years ? See Ranlet v. Cook, cited above.

But it is not necessary to go so far as that, for the case finds that from March 10, 1870, to the time of the trial, January term, 1871, the defendant intended to occupy the lot as tenant under his lease for five years from October 17,1870, and that the plaintiff, both before and after October 13, 1870, understood such to be his intention.

What more was wanted ? We are not aware of any particular form of notice required by law in such cases, the controlling consideration being, what was the understanding and intent of the parties (Doe v. Morse, 1 B. & Ad. 365; Doe v. Noden, 2 Esp. 530; Doe v. Biggs, 1 Taunt. 367); and no particular form is stipulated for in the lease. It does not seem, therefore, to have been one of the plaintiff’s legal rights that knowledge of the defendant’s election should be conveyed to him in any one given form more than another.

We do not say that it was necessary to the validity of the lease for five years more that the defendant should give the plaintiff formal notice of his intention at all, except by continuing his occupation. Nor do we say that an election made in his own mind, at the end of the first five years, and formal notice thereof five days afterwards, would not be sufficient. It is not necessary to consider these points, because it is clear enough that no legal right of the plaintiff is infringed by holding that his knowledge of the defendant’s intention was sufficient, without regard to the exact form in which that knowledge was conveyed to him. Judgment for the defendant.