Murtland v. English , 1906 Pa. LEXIS 655 ( 1906 )

Opinion by

Mr. Justice Potter,

On January 31, 1896, the plaintiffs, in writing, leased certain premises to one Eranldin S. Gibson, for the term of five years to be computed from February 1, 1896, at the yearly rental of $600, payable in monthly installments of $50.00 each. Subsequently, with plaintiffs’ assent, the lease was assigned to J. J. English, the defendant in this case. In the ninth clause of the lease it is “ expressly covenanted and agreed that if the lessee, his heirs and assigns, shall perform all the covenants of this lease, then he, his heirs and assigns, shall have the privilege of extending the term of this lease for five years longer, upon their giving to the lessors, their heirs and assigns, three months’ notice of their intention to avail themselves of this covenant, upon the terms herein contained.” English entered into possession of the leased premises and remained therein until the expiration of the term of five years. He did not give the three months’ notice required by the lease, nor any notice of his intention to exercise the option to extend the lease for another term of five years. But after the first five years had expired, he remained in possession of the leased premises, and continued to pay the same rent each month, which was accepted by the lessors, apparently without question, until August 22, 1902, when the lessors served defendant with a notice to"vacate at the expiration of his current term which was stated to be January 31, 1903. He did not vacate at the date named, but tendered a month’s rent falling due February 1, 1903, at the same rate which he had been paying, which the lessors refused to accept. The lessors then brought proceedings before a magistrate, to recover possession, and oil February 21, 1903, judgment was entered against defendant for $50.00 damages and costs. He appealed from this judgment to the court of common pleas. On the trial the court instructed the jury that defendant having failed to give three months’ notice of his intention to extend the lease, it was not renewed but expired by its own limitation. By holding over after the expiration of his term, defendant became a tenant from year to year. Notice to quit was admittedly given to him more than three months prior to the end of the current year, and, therefore, the only question left to the jury was the amount of damages to be awarded. The jury were instructed that plaintiffs were entitled to recover, first, the possession of the premises ; and, second, a sum of money to compensate them for the occupation of the premises during the time for which defendant had paid nothing. There. was evidence that the premises ha'd a rental value of $75.00 per month. The jury found a verdict for plaintiffs for $1,800, being at the rate of $75.00 a month, for the two years defendant had paid no rent.

The first assignment of error complains that the learned court below erred in instructing the jury that the lease expired by its own limitation. This raises the main question in the case. The trial judge is sustained in this statement of the law by the great weight of authority. In Trickett’s Landlord and Tenant, sec. 550, the rule in Pennsylvania is thus stated: “ The lease may confer the privilege of renewal or of continuing in possession for a prescribed time beyond the term, upon giving previous notice to the landlord of the intention to claim" it. Giving the notice in such a case is requisite. The burden is upon the tenant if he claims any rights upon the renewal clause, to prove the giving of the notice.” Citing Pollman v. Morgester, 99 Pa. 611; Burgwin v. Bishop, 91 Pa. 336 ; McClelland v. Rush, 150 Pa. 57. In 2 Wood on Landlord and Tenant, sec. 413, it is said: “ It very often happens that the lease gives the lessee an option to remain as tenant for another term. ... In such cases, if the lease requires that notice of a certain description must be given of a tenant’s election, the requirement in this respect must be strictly complied with.” Counsel for appellant has cited in his argument many cases which illustrate the law as to forfeitures; but, in the present case, there was no forfeiture or breach of covenant. It was merely a matter of the lease expiring by its own limitation, as was stated by the court below, without any intimation by the lessee that he desired another term. The tenant had the option of renewal, but he did not see fit to exercise that option.. We can see no merit in the suggestion that mere continuance in possession of the premises after the lease had expired, was in itself an acceptance of the option upon the part of the tenant for an additional term of five years. The authorities cited on behalf of the appellant apply only to cases in which no specific notice of an intention to exercise the privilege of renewal is prescribed in the lease. There might be conduct, such as the payment of an increased rental, which would be equivalent to an acceptance of the option. Thus, in Stone v. St. Louis Stamping Co., 155 Mass. 267, where the lease provided for a renewal at an increased rental, the holding over and payment of the increased rent by the lessee was considered evidence of his election to renew although no proof was offered of the notice prescribed in the léase having been given. But in the case at bar, the tenant neither gave notice nor paid any increased rental. There was nothing to indicate that the tenant had any intention of binding himself to stay upon the premises for another full term of five years. And, when he held over after the expiration of the term, without making any new arrangements, the tenancy became one for another year upon the same conditions as before: Harvey v. Gunzberg, 148 Pa. 294. This continued until the plaintiffs, by giving the proper notice, three months prior to the end of the current year, prevented any further renewal. The first specification of error is dismissed.

The second assignment of error complains of the refusal of the court below to grant a new trial. The reasons for which a new trial was asked are not printed in appellant’s paper-book. It was pointed out in Smith v. Times Publishing Co., 178 Pa. 481, that the power of this court to grant a new trial under the act of May 20, 1891, is exceptional in character, and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied. No such compelling reason exists here.

The third assignment violates rule 80, in that it does not quote the part of the charge complained of “totidem verbis: ” Crawford et al. v. McKinney, 165 Pa. 605.

The fourth, fifth, sixth, eighth and ninth assignments complain that the court below did not specifically charge, as therein stated, although no request for such instructions was made. These assignments are, therefore, bad, and will be disregarded: Burkholder v. Stahl, 58 Pa. 371; Kaufman v. R. R. Co., 210 Pa. 440.

The seventh assignment complains of the form in which the judgment was entered by the court. It was for possession of the premises, as well as for the money damages found by the jury. This was what the plaintiffs were entitled to recover under the instructions of the, court to the jury, and the form into which the judge moulded the verdict no doubt expressed the real finding of the jury. The action of the court in thus amending the verdict was clearly within his power. See Cohn et al. v. Scheuer, 115 Pa. 178. The damages awarded to the landlord for the detention of the premises, after the end of the term, do not arise out of contract, but they are indemnity. Compensation is the proper measure of such damages.

We see nothing in the record of this case which would properly convict the trial court of error, and, therefore, the judgment is affirmed.