
    REMEDY OF OW ÑER.'WHEREJLEASED PREMISES HAVE BEEN ABANDONED.
    Common Pleas Court of Montgomery County.
    Gustave Stomps v. Charles Stewart.
    Decided, November 6, 1912.
    
      Landlord and Tenant — Premises Vacated Before Termination of Lease— Owner’s Remedy an Action for Rental Rather than am Action for Damages, When.
    
    1. Knowledge on the part of a landlord of the vacation of premises before expiration of the lease, does not amount to a cancellation of the contract of lease, unless he assented thereto by some act, such as acceptance of rent from a new tenant.
    2. Where no assent to the vacation was given, a petition filed by the landlord for the rental for the remainder of the term is not open to demurrer on the ground that he has thereby admitted the cancellation of the lease and, consequently, is limited in his remedy to an action for damages on account of violation of the contract of lease.
    
      ' Joseph D. Chamberlin, for plaintiff.
    
      John E. Egan, contra.
   Brown, J'.

Case 34404 is an appeal in which, the plaintiff, by his petition on appeal, prays judgment for $225 and interest, for rent, in accordance with the terms of a written lease, from March 16th, 1912, to May 16th, 1912, at $75 per month. An allegation in this petition states that, pursuant to said indenture of lease tbe defendant occupied the premises under said lease from the 16th day of January, 1911, until the 16th day of March, 1912, when said defendant vacated said premises without said plaintiff’s consent and contrary to. the terms of said indenture of lease.

A demurrer is filed by reason of this averment, the defendant claiming that by this averment the plaintiff admits the cancellation of the lease by reason of the defendant vacating the premises, and that therefore his action should be one for damages for violation of the contract of lease, and not for rent under the lease as pleaded.

The defendant claims that his position is sustained by the decision in Rubel v. Muih, 5 O. C. D., 176, and the decision in James v. Allen County, 74 O. S., 226.

In the former case the defendant, Muth, set up in the answer the repudiation of the contract, and that the acts of the plaintiff, according to the evidence, warranted this repudiation. The court charged the jury upon the idea that the suit was brought for rents and that suit could' be brought and maintained month after month for rent, as though accrued on the continuing contract, not a suit for damages because of the repudiation of the contract. The circuit court held that this was error, as it clearly was; that under the facts the suit was for damages because of the repudiation. In determining that case the court cites the above ease of James v. Allen County, 44 O. S., 226, which was a case wherein James entered into employment under a contract for a specified time, to superintend the erection of a court house, and at the end of two months he was discharged and brought suit for two months wages, and afterwards brought suit for wages claiming to have accrued after the two months for which he had already obtained judgment. The Supreme Court held that he should have brought a suit in the first instance for the entire damages due him by reason of the breach of the contract by the county, and added that he could not maintain the suit brought later. '

Both of these decisions are good law; but let us see if they apply to the facts raised by this demurrer.

The principal question involved is whether the averment quoted from the petition indicates a forfeiture of the lease; because if the lease was canceled and forfeited on March 16th, 1912, by the defendant vacating the premises, then the suit should have been one for damages for breach of the contract, and not for rent under the terms of the contract, as indicated in the lease.

The plaintiff says in the same averment that the vacation was without his consent.

The lease was for one year, with the privilege of another year, at $75 a month. The term began on January 13, 1911.

When a tenant for years holds over after the expiration of his lease, he becomes, at the election of the landlord, a tenant from year to year. 57 O. S., 161; 67 O. S., 250.

Where the landlord and tenant do not agree as to the amount of rent to be paid during the new term, and the tenant continues to occupy the premises, his action in remaining in possession amounts to an implied agreement to pay at the former rate. 7 N. P., 364; 11 O. C. C., 453; 60 O. S., 569; Sutherland on Damages, par. 108. See also 82 O. S., 121; Kincaid on Pleadings, Vol. 2, par. 740; 15 O. C. C., 233.

A tenant for years who holds over becomes either a trespasser or tenant at the option of the landlord. His continuance in possession makes him a tenant for another year, if the landlord insists, and he can not terminate the tenancy before the end of the year without the landlord’s consent. The obligation of the tenant to pay the rent for the year in such case -is not within the statute of frauds, the holding over being equivalent to a new entry. 57 O. S., 161.

In the case of Lodge v. White, 30 O. S., 569, there was an assignment of the lease after they were holding over from year to year, as in this case, and their obligation to pay rent to the plaintiff was implied from their possession of the premises. The landlord received rent from the new tenant; and the court held that the defendant’s obligation to pay rent to the plaintiff was not founded upon the express agreement, but was only that implied by law from the privity of estate between the parties. The assignment of the lease and surrender of possession to the assignees, with the assent of the plaintiff, which was implied from the acceptance of rent from the new tenant, extinguished the privity of estate between the parties and the consequent implied liability of the defendants to pay rent.

This would seem to decide very clearly that the knowledge of the landlord of the vacation of the premises would not amount to a cancellation of the contract of lease, unless he agreed thereto by some act either of assent or implication, such as the acceptance of rent from a new tenant.

After carefully considering the question, I am forced to the conclusion that the petition is good, and that the demurrer should be overruled.

The petition in error, in case 34639, sets forth four grounds of error in substance:

1. The agreed statement of facts did not warrant the judgment.

2. Judgment should have been for the plaintiff in error.

3. The judgment rendered on June 10, 1912, was a bar to the action upon which this proceeding was prosecuted.

4. Other errors apparent in the record.

The bill of particulars in this ease avers the lease and terms thereof, as in case No. 34404, the occupancy by the defendant from the 16th day of January, 1911, until April 5th, 1912, when the defendant vacated the premises without the plaintiff’s consent and contrary to the terms of the lease; and praying for judgment for $115 for the period covered by said lease. The agreed statement of facts, covering two pages of typewritten matter, is submitted and is too lengthy for copying into this decisión. Among other things it is agreed that the landlord leased the premises to a new tenant August 1st, 1912, in accordance with an understanding with the representative of the tenant Stewart. The facts, with the application of the law as above recited, would clearly warrant the judgment rendered by the justice of the peace upon the agreed statement of facts, and there is no error therein.

Therefore judgment will be awarded for the full amount in case No. 34404, and the petition in error in 34639 will be dismissed at the costs of the plaintiff in error.  