Gardiner v. Bair , 1899 Pa. Super. LEXIS 243 ( 1899 )

Opinion by

W. D. Porter, J.,

The plaintiff leased to the defendant a store and dwelling, “ for the term of one year from the first day of September, A. D. 1891, at the rent of $480 per annum, with the privilege of four additional years at the rent of $540 per annum for the first year and $600 per annum for the three remaining years, to be paid in equal monthly portions in advance.” In addition to other covenants the lease contained the following, viz: “ And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term by giving the other notice thereof, at least three months prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year and so on from year to year unless or until terminated by either party hereto giving the other three months’ notice for removal previous to the expiration of the then current term.” The defendant went into possession under this lease and continued to occupy the premises until August 31, 1892, when he moved out, having paid the rent up to that time. The premises remained unoccupied until February, 1893, at which time the plaintiff secured another tenant at the same rental which defendant had paid during the preceding year. The plaintiff brought this action to recover for injury to the building done by defendant and for rent during the time that the property was unoccupied after defendants’ removal. Plaintiff recovered a verdict upon which judgment was entered, whereupon defendant appealed and the rulings of the court upon the trial are now assigned for error. o

The first and fifth assignments of error relate to the oral charge of the court and the answer to one of defendant’s points upon the question of alleged surrender by the tenant and acceptance by the landlord of the demised premises. The language of the court must be considered in connection with the testimony upon the subject to which it referred.

The only testimony offered in support of the alleged surrender was that of a clerk of the defendant. He swore that he took the keys of the building to plaintiff’s agent, Taylor, who refused to take them; witness then went to the house of the plaintiff, rang the bell and, when plaintiff came to the door, handed him the keys in an envelope, said, “ The keys of Eighteenth and Wharton,” and walked away. There is no evidence that the landlord knew who this clerk was or from whom he came. The defendant contends that if the landlord received the keys without saying anything the tenant is relieved from payment of rent. The learned judge charged the jury in these words: “ The second question of fact that you will have to determine is, Was there a surrender of the lease? And in order that there should be a surrender, it is not enough that the tenant gives up the keys, nor is it enough that the landlord takes the keys. The tenant must give up the term, and the landlord, or his agent on his behalf, must accept the surrender of the term. And that is a question of fact, which I leave to you under the evidence. Did the landlord accept the surrender of the term ?” This instruction was as favorable as the defendant had any right to expect. A surrender of demised premises, in order to be effectual to release a tenant from payment of rent, must be accepted by the lessor and the burden of proof is upon the lessee: Lipper v. Bouvé, 6 Pa. Superior Ct. 452; Lane v. Nelson, 167 Pa. 602. “Nothing is better settled in Pennsylvania than that a tenant for years cannot relieve himself from his liability under his covenant to pay rent by vacating the demised premises during the term, and sending the key to his landlord,” said Mr. Justice Paxson, in Auer v. Penn, 99 Pa. 370.

The second, third and fourth assignments relate to the construction which the court put upon the covenants of the lease and raise but a single question. Could the lessee escape liability, under tbe terms of tbe lease, for a second year, by vacating tbe premises at the end of the first year, without having given three months’ notice of his intention to terminate the tenancy ? The only clauses of the lease involved in the consideration of this question are the granting clause and that providing, that, in default of three months’ notice, by either party, previous to the expiration of the then current term the lease should continue, upon the same terms and conditions, for a further period of one year and so on from year to year. The grant was for the term of one year at the rent of $480 per annum, with the privilege in the lessee to extend this term four additional years at an increased rent; the clause requiring notice three months previous to the end of the term, in order to avoid liability for an additional year, did not curtail the right of the tenant to exercise his option to retain the premises for four full additional years, and these clauses are not repugnant to each other.

The term created by the lease was one year from September 1, 1891, for that period both landlord and tenant were bound, and, while it is true, that it was within the power of the lessee to extend the term, yet until there was an acceptance by him of the additional term, or a holding over, the term created by the lease ended with the first year: Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; McClelland v. Rush, 150 Pa. 57. If under the lease in question neither of the parties had given notices and the lessee had simply continued to occupy the premises, after the expiration of the first year, he would, in the absence of further evidence, have been held to have exercised his option to accept the full additional term of four years, upon the ground that such holding over was notice to the landlord that the lessee elected to exercise his privilege: Lipper v. Bouvé, supra; Harding v. Seeley, 148 Pa. 20. But the defendant had, on June 15, 1892, notified the plaintiff that he declined to accept the additional term of four years and that notice was in time to save him from incurring liability for the term of four years at the increased rent. That notice put an end to the option of defendant to extend the term, which remained as created by the lease. Under the terms of the lease the defendant was not compelled to accept or reject the additional term of four years until the expiration of the original one year term; but if he failed to give the landlord notice of his intended removal three months before the end of the original term his liability for the following year, under the covenant with regard to notice is a different question. If the defendant had given three months’ notice of intended removal his liability would have ended with the first year. If the plaintiff had given such notice, the result would have been to force the defendant to make his election; he must have removed at the end of the original term or have accepted the additional term of four years. As was said by Judge Rice, in reference to a covenant in the very words of that with regard to notice in the lease, “ Undoubtedly one purpose of this covenant was to put the landlord and the tenant on equal footing, so that the former should know a reasonable time before the end of the year whether he must seek another tenant, and the tenant should know whether he must seek another habitation : ” Lane v. Nelson, 167 Pa. 602.

The defendant covenanted that, in default of notice to the plaintiff three months prior to the end of the term, he should be bound.by the terms of the lease for a further period of one year. The jury have found that defendant did not give such notice. When it was too late the agent of defendant did attempt to give notice, which was received under protest. Under his contract the defendant is liable: Wilcox v. Montour Iron Co., 147 Pa. 540.

The defendant has no grounds for complaint against the rulings of the learned judge of the court below.

Judgment affirmed.