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107 C. Cls.

Opinion of the Court

he becomes, at the election of the landlord, a tenant from year to year, and in the absence of any new agreement with the landlord he holds under the terms of the original lease * * *. It follows that the lessor and the lessee may by agreement change the terms of the original tenancy; and if, before the beginning of another year the landlord notifies the tenant that the rent will be increased, and the latter nevertheless holds over into another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason for this is that the tenant must be presumed to have assented to the change. The au

thorities are numerous and conclusive on this point. From the foregoing authorities and the numerous decisions of other jurisdictions therein cited, and more particularly from those authorities which hold that this result will follow even though the tenant objects to the new conditions, provided the holding over is voluntary and not unavoidable, and the tenant does not explicitly refuse to be bound by the new terms, Griffen v. Knisely, 75 Ill. 411; Commercial Cable Bldg. Co. v. McKenna, 168 N. Y. S. 13; Stees v. Bergmeier, 91 Minn. 513, 98 N. W. 648, 649, we deem it to be well established that it is not necessary that the landlord and his tenant shall have arrived at an express new agreement, either written or oral, for continued occupancy beyond the expiration of the lease, in order to rebut the presumption that the holding over is upon the same terms as in the original agreement.

In Griffen v. Knisely the Supreme Court of Illinois expressed itself as follows:

The next question is, whether appellant, continuing to hold over after the expiration of his term, and with full notice that, if he did so, he would be charged for the rent of the whole property, at the rate of $12 per foot on Halsted Street, is to be charged only with the same rent, which he paid the preceding year for half of the property which he then occupied. This is the claim made by appellant; he concedes that, if he had held over, after notice of the terms, without objection, he might be held responsible upon the contract. But what difference can his objection make? The property belonged to appellee, and he surely might charge for its use what he pleased. If appellant was not willing to accede to his

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Opinion of the Court terms, he should have left the property. He had no right to remain in possession against appellee's wishes, and force him to accept himself as a tenant, on the same terms that he held the property the preceding year. Notwithstanding his objection to appellee's terms, inasmuch as appellee did not, upon his urging his objections, consent to modify them, his subsequent holding over raises the presumption that he finally concluded to accede to them and that his tenancy from May 1, 1871,

to May 1, 1872, was by contract. In the instant case the facts are much stronger for allowing the plaintiffs to recover than in the case last cited. Here the plaintiffs not only notified the defendant almost two months in advance of the expiration of the written lease that continued possession of the premises after June 30, 1941, would be at an increased rental and with the cost of certain facilities to be borne by the defendant contrary to what had been provided for in the existing lease, but the defendant did nothing, either before or after the expiration of the lease (at least until after its vacation of the premises on August 17, 1941) to indicate in the slightest degree that it had any objection to the new terms stipulated by plaintiffs.

Under the original lease dated July 26, 1938, as amended and renewed by supplemental agreements extending the term to June 30, 1941, the defendant was required to pay to the plaintiffs for the period from July 1, 1940, to June 30, 1941, a monthly rental of $550 for the occupancy of the entire second, third, and fourth floors of the Courts Building. During such period the plaintiffs were required under the terms of the lease to furnish the following:

Electric current for lighting, for electric fans and for ordinary office equipment, together with the necessary lighting fixtures, sockets, bulbs, wall plugs, etc.; cold water at all times and hot water when the furnace in the building is in operation; adequate heat; adequate toilet facilities and supplies; window shades on all windows; janitor service for the daily cleaning of toilet rooms; all supplies and materials necessary for the satisfactory cleaning of office rooms, corridors, and toilet rooms; and the keeping of the said lighting, heating, and plumbing fixtures in good repair.

107 C. Cls.

Opinion of the Court

be

In its letter of May 6, 1941, through its agents, Boss & Phelps, plaintiffs proposed to defendant a new lease as follows:

To give a one year lease beginning July 1, 1941, at a monthly rental of seven hundred dollars ($700). The leasors are to furnish heat and keep the building in repair. The Government, in addition to their monthly rent, is to pay for all charges for electric current, supplies, cleaning and janitor service and water rent if there

any charge for same. Under date of July 14, 1941, the defendant forwarded to plaintiffs for signature a form of renewal agreement to extend the lease for the period July 1, 1941, to June 30, 1942, with a proviso for termination by the Government at any time upon thirty days' notice. This proposed renewal agreement, after a recital that

Whereas it is desired by the parties hereto to provide for the renewal of said lease, as amended; to increase the annual rental rate to be paid by the Government and to provide that the Lessor shall not be required to fur

nish certain services under the lease, as amended, witnesses the agreement between the parties thereto that the annual rental rate to be paid by the Government is increased from six thousand six hundred dollars to eight thousand four hundred dollars and that

It is further understood and agreed by and between the parties hereto that the Lessor is hereby released from furnishing to the Government electric current for lighting, for electric fans, and for ordinary office equipment; water; janitor service for daily cleaning of toilet rooms; and all supplies and materials necessary for the satisfactory cleaning of office rooms, corridors, and toilet

rooms. On the same day that plaintiffs received the proposed renewal agreement from the Government their agents, Boss & Phelps, returned it to the Government, calling the latter's attention to two pencilled notations inserted by the lessor in the last paragraph on page one of the agreement (the paragraph we have just quoted) and requesting that the Government rewrite said paragraph as follows:

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Opinion of the Court

It is further understood and agreed by and between the parties. hereto that the Lessor is released from furnishing to the Government electric current for lighting, for elevator operation, for electric fans, and for ordinary office equipment; water; janitor service for daily clean. ing of leased premises; and all supplies and materials necessary for the satisfactory cleaning of office rooms,

corridors, and toilet rooms. It will be noted that while the language of the paragraph quoted from the renewal agreement drafted by the Government is not as broad as that in plaintiffs' letter of May 6, 1941, or in plaintiffs' requested revision of said paragraph, so far as reference is made to electric current and janitor service, it does undertake to release the lessor from furnishing to the Government electric current and janitor service, in almost the exact terms by which this burden was cast upon the lessor by the provision of the original lease we have quoted hereinabove. It seems obvious, therefor, that the revision requested by plaintiffs on July 14, 1941, was concerned with no more than a matter of draftsmanship. It was in no way inconsistent with the conditions stipulated in plaintiffs' notification to defendant under date of May 6, 1941, for a continued use of the premises after June 30, 1941. Having remained in possession of the premises after termination of the original lease, as amended, without protest or disavowal of the new terms imposed by the lessor, defendant had shown an acceptance of those terms. A contract thus existed between the parties whereby defendant was bound to pay, not only the increased rental, but in addition whatever electric current and janitor service it might require in the use of the leased premises.

The submission by defendant to plaintiffs, for their signature, of the renewal agreement, and the return of the same by plaintiffs with a request for revision of certain language employed therein was no more than a momentarily unsuccessful attempt of the parties to reduce their prior agreement to writing. If it be conceded that plaintiffs were over diligent in their desire to expressly negative in the formal agreement any obligation to furnish electric current for such elevator service as defendant might require in the use of the upper floors it had leased, and likewise

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107 C. Cls.

Opinion of the Court

any janitor service for cleaning such premises, their request was for nothing by way of substantive right to which they were ifọt already entitled.

Under the prior lease the plaintiffs had been required to tirish electric current for lighting, for electric fans and for ordinary office equipment, on the three floors occupied by defendant. In actual practice they may or may not have been furnishing electric current for elevator operation during the period prior to June 30, 1941. It seems probable that they did. The lease by its terms did not require them to do so. They were required also to furnish janitor service for the daily cleaning of toilet rooms on the three floors occupied by defendant. They may or may not have been furnishing janitor service for daily cleaning of the balance of the premises leased to defendant. Here it is likely that they did not. Again they were not required to do so by the lease. But in any event under the terms expressed in plaintiffs' letter of May 6, 1941, to which defendant impliedly consented by holding over without protest, the burden for all electric current and all cleaning and janitor service for the premises occupied by the defendant was cast upon defendant. The proposed renewal agreement, drafted and submitted to plaintiffs by the defendant subsequent to its holding over upon the termination of the lease, rather than affirmatively reciting that defendant would assume the burden of all electric current charges and all cleaning and janitor service, simply undertook to release plaintiffs from whatever obligation in this respect they had contracted for under the terms of the prior lease.

Defendant, in its brief, has argued that when it submitted the renewal agreement it was willing to sign on July 14, 1941, and plaintiffs failed to sign, requesting that the clause with reference to electric current and janitor service be rewritten, "obviously the parties were far apart.” The inference is sought to be left that the parties were unsuccessfully attempting, throughout the period between termination of the prior lease and vacation of the premises in August, to reach an agreement as to how much defendant should pay for its use of the premises during the period it held over; that having failed to reach an agreement, the Government vacated the

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