Cairns v. Llewellyn , 2 Pa. Super. 599 ( 1896 )

Opinion by

Wickham, J.,

The appellants, by an agreement in writing, dated November 4, 1886, let, to the appellees, for the term of three years from that date, certain premises in Philadelphia, to be used as a brewery.

The dispute between the parties concerns the meaning and effect of the following covenant in the lease, viz: “ It is hereby further agreed, that the said lessees shall have the privilege and option of renting the said premises for a further term of three years from the expiration of this lease.” It is not immaterial to observe here that the lessees covenanted to “ yield up and surrender possession of the premises ” at the expiration of the term.

It is suggested in behalf of the appellees, that the covenant first above quoted is void for indefiniteness. If it stood alone this would be true, but taken in connection with the context and the situation, circumstances and evident intention of the parties, it must be regarded as a covenant to renew, that is, to give another lease containing the same terms and stipulations as the original lease, except the renewal agreement. It matters not what language is used, so that the intention is reasonably apparent. The word renew or renewal is not essential if other words conveying the same idea are employed. “Re-rent,” “rent again,” “privilege of another term,” “refusal of the premises ” and like expressions, without more, are sufficient, provided that the length of the new term is specified.

“ A covenant that the lessee shall have the refusal of the premises at the expiration of the lease, for a specified term, is a covenant to renew the lease at the same rent for that term. It is violated by a refusal of the lessor to renew the lease at the same rent for that term: ” Taylor Land, and Ten., sec. 332; 2 Wood. Land, and Ten. (2d ed.) sec. 413; Tracy v. Albany Exchange, 7 N. Y. 472; Cunningham v. Pattee, 99 Mass. 248; Creighton v. McKee, 7 Phila. 324.

The next question, presenting itself for consideration is, What would be the effect of a holding over by the tenants, after the expiration of the first three years ? It is conceded that under the Pennsylvania decisions the first term ended on the last moment of November 3, 1889: Marys v. Anderson, 24 Pa. 272 Nesbit v. Godfrey et al., 155 Pa. 251. We are of the opinion that any holding over, even for a very short time, would give the landlords the right to elect to hold the appellees liable as tenants for another term of three years, regardless of the intentions of the latter: Harding v. Seeley, 148 Pa. 20; Wood, Land, and Ten. (2d ed.) sec. 13; Kramer v. Cook, 7 Gray, 550; Montgomery v. Commissioners, 76 Ind. 362; s. c., 40 Am. Rep. 250; Kimball v. Lodge, 131 Mass. 59; Clarke v. Merrill, 51 N. H. 415; Conway v. Starkweather, 1 Denio, 113; Holley v. Young, 66 Me. 520; Long v. Stafford, 103 N. Y. 274; Delashman y. Berry, 20 Mich. 292. In the last cited case the court say, “ Upon principle it would certainly seem, that the actual continuance of such occupation was the best and most conclusive evidence of the intention to continue. And as it was at his option to have the term expire at one year, or three years, and he had covenanted to deliver up possession at the end of the term, but one inference could legally and properly be drawn from such continuance after the year, to wit: that he intended to continue rightfully, according to the terms' of his lease, rather than wrongfully in defiance of its provisions.” In Harding v. Seeley, supra, it is said, “ That a holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege, is generally held in this country.”

A tenant under a lease like the one we are considering should be ready and willing to redeliver possession immediately on the expiration of the first period therein mentioned, unless he chooses to take the risk of liability for another term. Even if he give notice that he intends to go out at the end of his term and then does not promptly go, he must pay rent for another term: Graham v. Dempsey, 169 Pa. 460. As Mr. Justice Mitchell remarles, in the case just cited, “ That actions speak louder than words is sound law, as well as proverbial wisdom.”

In the present case, if the tenants, either by writing or parol, agreed, at any time during the first term to accept a second, under the option given them, they would be bound. The acceptance being the exercise of a right conferred by the written lease, is not within the Statute of Frauds: McClelland v. Rush, 150 Pa. 57. So also, if the tenants after the 3d day of Novem ber, 1889, kept property on the premises under such circumstances or, to such an extent as induced and justified a reasonable belief that they intended to remain, or thus prevented the landlords from regaining practically full possession, such con duct would be a holding over in the eye of the law. In brief anything done by the tenants which had the effect of keeping the landlords out of possession would be deemed as an exercise of the option given the former by the lease, rather than a violation of their covenant to yield up possession at the end of the term.

Whether or not there was a parol acceptance, in this case, of the second term, or a holding over, as alleged by the appellants, were matters for the consideration of the jury. The merely leaving some rubbish on the premises, which the appellees allege is all that remained, and which they aver was removed afterwards at the appellant’s request, or indeed the leaving of something more valuable, would not necessarily prove, that the appellees were still retaining possession of the premises and keeping the appellants out. The question after all is, Were the appellants in any manner excluded? If they were not, and the appellees had not previously agreed to stay for the second period of three years there can be no recovery.

It was not incumbent on the appellees to notify the appellants that they would not accept the second term, nor were they bound to seek the appellants to surrender the property or turn over the keys of the building. The rule contended for by the appellants would often require tenants to seek their landlords in foreign countries.

It is to be regretted that the charge of the learned trial judgé and his answer to one of the appellant’s points are not free from error. For reasons above set forth, or suggested, the appellant’s third point should have been affirmed. No one of the other four points could have been affirmed in its entirety and each was therefore properly refused. This disposes of the last five of the fifteen assignments of error.

In the language quoted from the charge, in the first and fourth assignments, the court below assumes that the keys were tendered to Mrs. Cairns. The appellants themselves conceded, at the trial, that this was not done. Again, in the last sentence of the excerpt quoted in the first assignment, the learned trial judge told the jury that if the appellants remained in possession after the first three years they were there as trespassers and not under any right given them by the lease. This instruction was erroneous. A holding over by the appellees no matter what might be their intention in so doing would, under the circumstances shown by the evidence, be an exercise of their option.

The second and third assignments contain language from the charge which was perhaps calculated to lead the jury to think that if the appellees had ceased to use the brewery for the business for which it was rented their liability might, for that reason, also cease. The evidence in regard to this matter was admissible, as having a bearing on the question of what property was on tlie premises at the end of the first term. The jury should have been told, however, that such evidence should be considered for this and no other purpose. As we are in doubt as to whether the language had a greater effect, the second and third assignments are not sustained. The fifth assignment is based on language in the charge which, read in connection with the context, is not erroneous. It is not sustained. The sixth and seventh assignments are sustained for reasons suggested earlier in this opinion. If the appellees actually withheld possession, it mattered not what use they put the premises to. They might choose to keep the building locked up and unused for business purposes or as a dwelling. If they kept their property on the premises in such a way or to such an extent as to deprive the appellants of possession, they would, as hereinbefore explained, be liable for the rent. The eighth assignment is overruled. The ninth and tenth assignments are sustained. The learned trial judge was in error in assuming, as he did in the instructions quoted in the last mentioned assignments, that an exercise of the option conferred by the lease on the tenants required a new agreement. The agreement so far as the lessors were concerned was set forth in the writing. To make it effectual as to both parties, nothing more was needed than the lessees’ acceptance.

Judgment reversed and venire facias de novo awarded.