
    Palevsky v. Bentfield.
    (Decided December 11, 1933.)
    
      Mr. Ben P. Rabb, for plaintiff in error.
    
      Mr. C. F. McConnell, for defendant in error.
   McGill, J.

The plaintiff, Archie Palevsky, filed a statement of claim in the municipal court of Cleveland alleging in substance that the defendant, Harold Bent-field, was occupying on a month to month basis a suite of rooms owned by plaintiff; that the rental became due on October 1, 1932; that defendant refused to pay the rent and vacated the suite on the aforementioned date, and that there was due and owing the plaintiff the sum of $69 for rent for the month of October, 1932.

To this statement of claim the defendant filed an answer admitting occupancy of the suite, but denying that he (the defendant) occupied the premises during the month of October, and denying any indebtedness to the plaintiff. The answer further contained the following allegation: “Defendant further says that he notified the plaintiff on the 30th day of September, 1932, that he would vacate said premises and that he would not occupy them during the month of October and thereafter; that he did vacate said premises on October first.”

That such notice was given was neither denied nor disputed.

The court below rendered judgment on the pleadings for the defendant, and plaintiff has prosecuted error to this court.

It is the contention of the plaintiff in error, Palevsky, who was plaintiff below, that Bentfield, not having vacated the premises by midnight of September 30, is bound, at the election of the plaintiff, for the October rental. .

It was urged by the defendant, Bentfield, that his rental was paid for the entire month of September, 1932, and that this gave him a right to move on October 1st in order to have the benefit of the full month of September.

The first question presented relates to the time when the tenant’s lease expired.

In the case of Dennis v. Coble(1923), 18 Ohio App., 62, it is said by Richards, J.„ at page 63: “ The original lease was by its terms to begin on the first day of July, 1920, and while there were some negotiations between the parties and some correspondence which might be construed to imply that the lease was to terminate on July 1, 1922, we have no doubt that these matters are all referable to the original lease and that the tenancy would expire at midnight on June 30, 1922.”

In the case of Title Ins. & Trust Co., Exr., v. Amal gamated Oil Co., 63 Cal. App., 29, 218 P., 71 (1923), it is stated in paragraph 1 of the syllabus: “Rent payable on a day certain accrues and becomes due at the very beginning of said day, and by no act of the tenant thereafter, even though performed on the same, day, can the owner of the premises be divested of his right to said rent.”

In 62 Corpus Juris, 978, it is stated: “As a general rule, in the computation of time, a day is to be considered as an indivisible unit or period of time, which has its beginning coincident with the first moment of the day, and the law will not, unless there' is sufficient reason therefor, recognize or take cognizance of fractions of-a day; and in some jurisdictions there are statutory provisions to this effect.”

In 24 Ohio Jurisprudence, 1215, paragraph 470, we find: “Where a tenant holds over after the expiration of his term without permission, a new tenancy arises at the election of the landlord. The tenancy is for another period, for example, another year or another month, or is a periodical tenancy, as from year to year or from month to month, dependent upon the term of the original lease.”

Applying these principles, it is clear -that, in the absence of other circumstances, where a tenant holds over for a day or a fraction of a day, the landlord has a right to consider the tenancy as continuing and to demand his rent which has become due.

This holding over is based upon an implied agreement, and indicates on the part of the tenant that he intends to continue the relationship. If the landlord so elects, the tenant is then bound.

In the instant case the tenant would be liable for the October rental if it were not for the allegation in the answer that the tenant notified the landlord on September 30 that he would vacate the premises and would not occupy them during the month of October and thereafter. Inasmuch as a judgment was rendered on the pleadings, the record is silent as to 'whether the landlord acquiesced when this notice was given, or told the tenant that he would be held unless he vacated on September 30. If the landlord, at the time the notice was given, on September 30, had advised the tenant that he would be held unless he vacated by midnight of September 30, a different question would be presented, which it is unnecessary here to decide.

As the record stands, when the tenant on September 30'notified the landlord that he would vacate, and would not occupy the premises during October, we think such notification clearly rebutted any intention on the part of the tenant to remain, and that under the facts no implied agreement resulted or could result.

The oral lease in the form of a month to month tenancy was based upon a contractual relationship of the parties. After notice to the landlord on September 30, that the tenant would not occupy the premises, it cannot possibly be said that there was any intention on the part of the tenant to continue the relationship.

For these reasons we think the court below was right ' in entering judgment for the defendant on the pleadings, and accordingly the judgment is affirmed.

Judgment affirmed.

Lieghley, P. J., and Levine, J., concur.  