Stiles v. Himmelwright , 16 Pa. Super. 649 ( 1901 )

Opinion by

W. D. Porter, J.,

The defendants went into possession of certain real estate on April 1, 1894, under a lease bearing date March 29, 1894, for the term of one year ending April 1, 1895. They continued in possession, after the expiration of the original term, and finally moved out on April 1, 1899. The plaintiffs had succeeded to the title of the original lessor by descent, and were entitled to all the rights of the landlord under the lease. The defendants had paid the rent for the five years during which they continued to occupy the premises. This action involves the question of the liability of the defendants for the rent during the year beginning April 1, 1899. The plaintiffs did not allege that the defendants occupied the premises for any part of said year, and the assertion of liability for the rent is not based upon an actual holding over after the expiration of the preceding term. The plaintiffs relied upon the express covenants of the lease, and the failure of the defendants to give notice three months prior to the end of the term of their intention to quit on April 1, 1899.

The lease, dated March 29, 1894, creates a definite term of one year, from April 1, 1894, to April 1, 1895, at the rent of $100 per annun. The covenant of the lease, which is now material, is in these words, viz : “ The said lessees shall give three months’ notice previous to the expiration of said term of their intention to remove, and three months’ notice previous to the expiration being given to them to quit the premises, they shall, at the expiration thereof, deliver unto the said lessor or his assigns, peaceable possession of the same, in the same order and condition as when they took possession thereof, common wear and unavoidable accidents by fire excepted. In default of notice as aforesaid, this agreement shall be considered as renewed for the succeeding term of one year.” It is admitted that the defendants did not give notice of their intention to remove until in February, 1899, less than three months prior to the expiration of the then current term. It is contended by the plaintiffs that this case falls within the class of cases of which Wilcox v. Montour Iron & Steel Co., 147 Pa. 540, Lane v. Nelson, 167 Pa. 602, Gardiner v. Bair, 10 Pa. Superior Ct. 74, and Megaree v. Longaker, 10 Pa. Superior Ct. 491, are examples. The liability of the defendants — in the cases cited — did not arise as an incident of tenancy from year to year, but from the express covenants of the leases in the several cases. In all of these cases there was a continuing covenant that the lessee, however long he might occupy the premises, should give notice three months prior to the end of any year with which he in-, tended to terminate his tenancy. When a tenant for years does not incur a liability for the rent of an additional year by holding over after the expiration of his term, the landlord who would collect rent after his tenant has ceased to occupy the premises is dependent upon the covenants of the lease. It is within the power of the parties to such a contract to stipulate that the lessee shall be required to give notice of his intention to rer move three months prior to the end of any specific year, or three months prior to the end of any year, and in default of such notice that he shall pay rent for an additional year. The tenant may be exempted from the necessity of giving notice prior to the end of the first and second years, and may be required to give notice prior to the end of any subsequent year: Ashhurst v. Eastern Pennsylvania Phonograph Co., 166 Pa. 357. The liability is not an incident of the tenancy from year to year, but is founded in contract.

We are constrained to hold that the covenant here in question applied only to the original term. The term created by the lease was only one year; the lessees were required to give three months’ notice “ previous to the expiration of said term of their intention to remove.” The consequence of the failure to give such notice was that the agreement, to lease and to pay rent, was to be considered as renewed for the succeeding term of one year. This was a definite covenant with regard to the particular term, and there is nothing in the lease which would warrant us in holding that that covenant was to be carried forward from year to year.

The learned judge of the court below was undoubtedly correct in holding that the judgment showing a recovery for the month of April was not a bar to a suit upon the lease for the rent accruing during the following months. A landlord may bring a separate suit for each instalment of rent as it accrues, he is only bound to bring his suit for all the instalments which have accrued at the time of the bringing of his action. The first and second assignments of error are sustained.

The judgment is reversed.