Crouch v. Trimby & Brewster Shoe Co.

LEWIS, J.

The only question presented by this appeal that merits consideration is whether the defendant, by continuing in the occupation of the third floor in the manner stated, after the expiration of the two years provided for in the written lease, must be held to have waived the necessity of giving the .formal notice provided for by the terms of the written lease, and thereby extended the term for two years after the 1st of April, 1892. The general rule contended for by the plaintiff is that a tenant, occupying premises under a lease containing the provision as to extension of the term like the one in suit, who continues to occupy the premises after the expiration of the term with the consent of the landlord, paying the rent as it accrues, is held to have waived the necessity for giving the notice, and is bound for the additional time. But has that rule any application to this case? Here the tenant, before the time fixed for giving the notice had arrived, determined that the one floor would not accommodate its business, and so informed the plaintiff. Had it not been able to obtain the additional room, there is nothing in the case justifying the conclusion that it would have availed itself of the privilege of continuing the term of the first lease. The evidence negatives any such claim. The premises first leased had been altered by changing the partitions and connécting the two rooms by a stairway, and thereafter both floors were occupied under the new arrangement for the increased rental, which happened to be just twice the amount called for by the first lease. We fail to find any evidence justifying the inference that the defendant ever elected to avail itself of the right to extend the term of the first lease, or that the landlord supposed it was to be extended. By continuing in the possession of both floors after the termination of the first lease, the defendant became a tenant at will. The first lease, by its terms, expired with the month of March in the year 1892, and unless it was extended by the parties thereto for the additional two years the defendant was not liable under its provisions. The question is not whether the conditions of the first lease were changed or modified by the verbal contract for the two rooms; that is not the claim of the defendant; but the question is, was the lease renewed for an additional term of two years? The court, we think, erred in directing a verdict for the plaintiff, and the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.