
    Mansfield Motors, Inc., v. Freer.
    (Decided January 20, 1932.)
    
      Mr. William F. Voegele, for plaintiff in error.
    
      Mr. Charles H. Workman, for defendant in error.
   Lemert, J.

This cause comes into this court on petition in error from the court of common pleas of Rich-land county, Ohio.

Plaintiff in error was the defendant in the court of common pleas and the defendant in error, Joseph Freer, was the plaintiff. Many grounds of error are alleged and set forth in the petition in error, many of which are not stressed or relied upon in brief or oral argument, the principal grounds relied upon being that the judgment and finding of the court below are not sustained by the weight of the evidence, are contrary to the weight of evidence, and contrary to law.

The principal questions at issue in this case are as follows: First, the rights and obligations of plaintiff in error and defendant in error growing out of a certain lease; second, the liability of the plaintiff in error for certain damages growing out of the breaking of some plate glass on said premises.

A copy of the lease, marked Exhibit A, provides in part: The defendant in error, Joseph Freer, as lessor, leases certain premises situate in the city of Mansfield, Ohio, to the plaintiff in error, as lessee, for a period of one year, “commencing on April 1st, 1927, at a rental of $262.50 per month, payable monthly in advance on the first day of each and every month thereafter. ’ ’

The lease also contains a provision as follows: “Lessor also gives an option to lessee to renew this lease for an additional term of 3 years on the same terms and conditions as a part and consideration of this lease providing 60 days notice of its intention to renew is given to the lessor in writing. ’ ’

Upon the terms of this lease, lessee, the plaintiff in error, entered into possession of said premises on the first day of April, 1927, and continued in possession until the first day of April, 1930, and paid all the rentals for said period at the rate of $262.50 per month up to April 1, 1930.

On said April 1, 1930, the plaintiff in error vacated said premises, and thereafter the premises remained vacant for several months and the defendant in error sued for recovery of rentals at the rate of $262.50 per month.

It is conceded that this amount represents rentals covering the period after said premises were vacated by plaintiff in error up to and including the time they were re-rented by the defendant in error to other parties.

It is conceded that no notice was ever given by plaintiff in error to defendant in error in writing or otherwise, signifying its intention to renew said lease on the same terms and conditions for an additional term of three years.

It is conceded that the plaintiff in error, without giving any notice in writing, remained in said premises from April 1, 1928, to April 1, 1930, said period being two years longer than the term stipulated for in the first instance, which was for the term and period of one year. The defendant in error claims that the plaintiff in error, by remaining in possession of said premises, thereby became bound for the additional period of three years. The plaintiff in error claims it was not bound for any period exceeding one year at a time after expiration of the original term specified in the lease.

With reference to the law that we believe should and does govern this case we note that in Owen v. Barre, 14 Ohio App., 104, 32 O. C. A., 40, the Court of Appeals of this district, sitting in Knox county, on April 22, 1920, gave utterance upon the identical question that is now presented to this court in this case, and the court there held:

“1. A lease, stipulating a term of five years for an agreed sum payable in monthly installments in advance on the first of each month, and providing that the last three years of said term of five years is to be at the option of the lessee on the giving of ninety days’ notice, in writing, immediately preceding the expiration of said two-year period, of his intention to occupy for the three years following, terminates at the end of the second year if the notice is not given.
“2. In case the lessee, without giving such notice, holds over and pays the stipulated rent he becomes a tenant from year to year.
“3. The holding over beyond the two-year period and paying the rent without having given the notice to extend the term will not alone be sufficient to constitute an election to extend the term for the period provided by the option.”

In the case above quoted it was argued that the lessee became bound for the last three years simply because he remainedj in possession after the termination of the first two-year period.

The court therein very aptly considered the decisions which were offered in support of this contention and then held as above indicated. The court by such decision indicated that, in order to hold the lessee to such extension, it was necessary for said lessee to give lessor notice of such extension in writing. In other words, the lessee required some positive act to be complied with by the lessor, or else the lessee is not bound nor is the lessor bound in any way to re-. spect such extension.

There are to be found numerous eases wherein it has been held that remaining in possession after expiration of said period amounts to, and is equivalent to, an intention to hold.

We find no fault with such holdings on the special. statement of facts to be found in such cases. However it is quite easy and proper to differentiate the present case from such cases.

We note that the courts make a distinction between a covenant to renew a lease and the execution of a provision conferring on the lessee the privilege of extending his term. In the former instance some positive act on the part of the parties, or notice by the tenant, is required; merely holding over by the tenant for a portion of the extended term, in the absence of a stipulation for notice in the lease, is sufficient notice, and constitutes an election to hold for an additional or extended term. If a lease requires a notice for the extension of the term, it is essential to the extension that the notice be given.

The courts of Ohio and other jurisdictions have held that such intention is not shown by merely holding over, and if the rental is received by the lessor, it will be a holding from year to year, and the lessee will not be bound to pay the rent for the remaining period provided by the option or privilege contained in the lease if he should quit the premises at the end of any year.

Now referring to the claim for negligence in the breaking of a certain plate glass window in the premises, we note it is claimed that the plate glass window in question was broken by the negligence of the plaintiff in error. This negligence is denied, and plaintiff in error says that said window was broken through inherent defects in the window sash, and in the fitting in, and not by reason of any fault or neglect on the part of the plaintiff in error. Plaintiff in error claims that the judgment rendered on this claim should be reversed for two reasons: first, that, in order for the defendant in error, plaintiff below, to recover on such claims, it must prove the negligence on the part of the plaintiff in error; second, that the judgment on said claim rendered below is not supported by any evidence, and in fact, is contrary to the weight of the evidence, and that negligence is never presumed, but must be established by the evidence adduced.

There is very little evidence in the record on this proposition or contention of the parties, and a careful examination of the evidence produced on that subject convinces us that there was an utter failure on the part of the plaintiff below to produce the proof that the plate glass window was broken through the negligence of the defendant below, and the record fails to show by the weight of the evidence such to be the fact.

Referring again to the lease, we note that there is nothing in the lease to so indicate, or upon which to charge the plaintiff in error with the replacement of the glass, and plaintiff in error could not be charged with replacement of glass unless' said plaintiff in error was responsible for the breaking of the glass, or unless same was the result of negligence by it or some of its servants.

The lease contains the following conditions: “And at the expiration of this lease, to surrender said premises in as good condition as they now are or may be put in by said lessor, reasonable wear and unavoidable casualties, condemnations or appropriations excepted.” •

Construing Section 4113, Revised Statutes (now Section 8521, General Code), it has been held that a covenant, in a lease to deliver up premises in as good condition and repair as the same shall be put by the lessor at the commencement of the term, natural wear and decay excepted, is a covenant to malm such repairs only as would ordinarily arise under their occupancy, and does not include extraordinary conditions resulting from injury to or destruction off the premises by fire, or the elements.

No recovery can be had on a claim for alleged negligence, unless the same is shown, and there is nothing in the record before us that would so indicate, or from which an inference could be drawn that the plaintiff in error or any of its servants were guilty of any negligence.

Therefore, entertaining the views as hereinbefore expressed, we are of the opinion that error has intervened in this case and a jury having been waived in the ease, we find and believe that the finding and judgment of the court below was wrong.

It therefore follows that this case will be, and the same hereby is reversed, and the cause is remanded to the lower court for further proceedings according to law.

Judgment reversed and cause remanded.

Sherick, P. J., and Montgomery, J., concur.  