Kinsey v. Minnick

Bartol, O. J.,

delivered the opinion of-the Court.

• The facts of this case, so far-.as they appear to be material to be. stated are as follows: The appellee, a married woman, being the owner of premises in Baltimore, made a lease of them to -Shipley and-ICinsey, for-three years beginning on the' 1st of October 1869,'at $35 per month, with the privilege to the lessees of renewing the lease, for the term- of two years, from and after the expiration of.the original term, ‘.‘paying for the additional term of two years, the rent- of $480 per.- annum, in equal monthly instalments of $40.” Shipley and Ki'nsey-went into-possession, and occupied the- propérty-for about two years and a half, when Shipley went out, and Kinsey continued in the occupation, together with Louis P. Haslup, who was his partner in- the business carried on, upon the premises, paying rent for the balance of the original term óf- three years, at the rate of $35 a month, and after that time $40 a month; until the first day of October 1873 ; when without giving any notice in writing to the appellee, they left the premises, and Haslup tendered the key to the appellee which she refused to accept. .Proof was given that the bills for rent, were made out in the name of Kinsey and Haslup, by Kinsey’.s direction, and were paid in Haslup’s. presence.

This suit was brought to recover from the appellants, rent for -three months from Dec. 1st 1873, to March 1st 1874. ...

Testimony was offered by the defendants that the appellee had brought two suits before a Justice of the Peace, against Kinsey and Shipley, one for the rent of the premises for the month of October 1873, and the other for the month of November 1873. That the appellee was examined as a witness in both cases, and testified that she claimed the rent from Kinsey and Shipley as her tenants under her lease. That in the first case she recovered a judgment against Shipley and Kinsey, and in the second case against Kinsey alone; that both cases were taken by appeal to the Baltimore City Court, in the first, the judgment of the Justice was reversed and she recovered judgment against Kinsey alone, which judgment has been paid; the other case is still pending.

It appears, by the record that some evidence was offered by the plaintiff to which the defendants objected, and the objection was overruled by the- Court below; but as no bill of exceptions was taken to this ruling, there is no question before us upon the evidence. The points for decision arise upon the prayers. Those offered by the defendants will first be considered. The first and second present no question that can be reviewed. Since the Act of 1825, ch. 117, such prayers have often been decided to be too general. Penn vs. Flack, 3 G. & J., 369; Hatton vs. McClish, 6 Md., 407; Casey vs. Suter, 36 Md., 1; Blair vs. Blair, 39 Md., 556.

The third and fourth prayers may be considered together, they assert the proposition that, if the defendants occupied the premises as monthly tenants, 'as stated in the declaration, until the first day of October 1873, and then moved out, tendering the key to the plaintiff notifying her verbally that they had removed, they ceased to be her tenants, and were not liable for rent thereafter ; and that notice in writing was not necessary to terminate the tenancy. The prayers also incorporate the fact, that the plaintiff had sued and recovered the rent for the months of October and November ISTS ; but that fact as it is stated in the prayer has no significance or material bearing upon the question involved, which is simply what' notice is required from a tenant to the landlord to terminate a tenancy in the City of Baltimore ? This is prescribed by the- Code, Vol. 2, Art. 4, sec. 885, which requires a notice of “ thirty days previous to the end of the year or other period for 'which he holds the same, and section 886 requires the notice to be in writing. Construing these sections in connection with the three preceding sections, to which they refer, there can be no doubt that they apply to a monthly tenancy, which is that under which the defendants held the premises; and we consider it equally clear that the 886th section, in so far as it requires the notice to he in writing, applies to the tenant as well as the landlord.

It follows that the third and fourth prayers were properly refused, and for the same reason there was no error in rejecting the fifth prayer which presents the same question. The sixth and seventh prayers wrere also properly refused, they rely upon the proceedings instituted by the plaintiff before the Justice of the Peace, in which she claimed the rent for October and November 1813, from Shipley and Kinsey, alleging them to he her tenants, as estopping her from maintaining the present suit.

It appears from the proof however, that the proceedings before the Justice were instituted upon the written lease, which she erroneously believed to be valid and binding. But it turned' out not to be a valid lease, she being a married woman, and her husband not having united with her in its execution; as was correctly decided by the City Court on the appeal from the judgment of the Justice of the Peace. The assertion by the plaintiff in those proceedings of her claim against Shipley and Kinsey, was nothing more than the assertion of a legal proposition, in which it turned out she was mistaken, and cannot operate as ail estoppel in this suit, or preclude her from recovering the rent for the proceeding months of December, January and February, from the defendants, if they are shown by the evidence to be legally liable for the same. It is clear that the doctrine of estoppel has no «application to the case.

(Decided 22nd June, 1875.)

It remains for us to consider the plaintiffs prayer which was granted. We have already said that the written lease of September 22nd 1869, was invalid for the reason stated, but Shipley and Kinsey having taken possession under it, occupied the premises as tenants liable for a monthly rent of $35, the law in such case implies a verbal agreement of similar import as to terms, to that expressed in'the writing. Anderson vs. Critcher, 11 G. & J., 450; Taylor’s L. & T., sec. 58.

When Shipley removed from the premises, and Ilaslup went into the occupancy with Kinsey as his partner, and thé plaintiff recognized the appellants Kinsey and Ilaslup as her tenants by accepting rent from them, these facts were evidence of a surrender of his tenancy by Shipley, and the acceptance by the plaintiff of Ilaslup as tenant in his place; as was decided in Lamar vs. McNamee, 10 G. & J., 116. The same point was decided in Woodcock vs. North, 8 Bing., 170, (21 E. C. L., 259.) We refer also to Nickells vs. Atherstone, 59 E. C. L., 943.

The appellants having continued in possession as tenants, after the expiration of the original term of three years, and continuing to pay rent thereafter at the rate of $40 per month, were liable to the plaintiff for the sum claimed in the seventh count of the declaration ; by reason of their failure to terminate the tenancy by giving written notice as required by the Code. The Court below was therefore correct in granting the prayer of the appellee.

Judgment affirmed.