
    The Buschman Co. v. The Garfield Realty Co.
    
      Landlord and tenant■ — ■Extension of term — Parol agreement — Repudiation — Notice by landlord — Leases.
    1. A parol agreement made by a landlord and tenant in possession under an existing lease, prior to the expiration of such lease, for a tenancy in futuro from and after the original term, may be repudiated by either party before the same has been validated by possession taken thereunder.
    2. Notice by the landlord to the tenant, after the parol agreement has been made, that he desires possession of the premises at a time prior to the time fixed for the tenancy by the parol agreement, is a repudiation of such an agreement.
    (No. 15525
    Decided December 11, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    
      ■ This case originated in the municipal court of Cleveland. In its statement of claim defendant in error alleged that on or about August 1, 1913, it leased, in writing, to plaintiff in error, a certain storeroom in what is known as the Anisfield Building, in the city of Cleveland, for a period of two years, commencing on the first day of August, 1913, and extending to and including the 31st day of July, 1915, plaintiff in error to pay a rental of $10,000 for the first year and $12,000 for the second year, payable in equal monthly installments in advance. It was alleged that plaintiff in error had held over and had remained in possession of the premises after the expiration of said lease to the 15th day of August, 1915, and, contrary to the terms of said lease, had refused to pay the amount due defendant in error for the period August 1, 1915, to August 15, 1915. There was a prayer for judgment in the sum of $500 with interest.
    In its amended statement of defense, set-off, and counterclaim, filed by plaintiff in error, it admitted its tenancy of the premises described until August 1, 1915, and then denied each and every other allegation contained in the statement of claim.
    Plaintiff in error by way of set-off and counterclaim alleged that on or about April 21, 1915, defendant in error extended said lease expiring August 1, 1915, for a further period of eight months, or until April 1, 1916, upon the same terms and conditions, and that relying thereon plaintiff in error made no efforts to secure another location. It was alleged that defendant in error, in violation of the rights of plaintiff in error and its contract and agreement extending to April 1, 1916, had leased a portion of the premises to The Graves & Laughlin Company, and that thereafter, on May 11, 1915, defendant in error had served notice upon plaintiff in error to vacate said premises on August 11, 1915, and that on August -, 1915, had served upon plaintiff in error a three-days notice to vacate the premises. It was.then alleged that by reason of the wrongful acts of defendant in error in leasing a portion of said premises to other parties and violating its contract and agreement with plaintiff in error, and by reason of said notices, plaintiff in error was compelled and forced to hurriedly engage another location at a much larger rental and to make hasty preparations for removal and incurred large expense in doing so and suffered a loss of trade and damage in consequence thereof. It was further alleged that plaintiff in error vacated said premises on August 11, 1915, in compliance with the notices from defendant in error, and that in order to do so it was compelled to and did expend $1,000 and suffered additional damage in the sum of $2,000. The prayer of plaintiff in error was that the statement of claim of defendant in error be dismissed and that plaintiff in error be given judgment in the sum of $2,500, and that the same be set off against any claim of defendant in error.
    In the reply of defendant in error it was admitted that on or about May 11, 1915, it had leased a portion of the premises to The Graves & Laughlin Company and that on August —, 1915, it had served notice upon plaintiff in error, and it admitted further that on August 11, 1915, plaintiff in error had vacated said premises. Each and every other allegation and averment contained in the set-off and counterclaim was denied.
    The case was submitted to the municipal court upon the pleadings and the evidence, without the intervention of a jury, and the court found in favor of defendant in error on its statement of claim in the sum of $478.48 and against plaintiff in error upon its set-off and counterclaim. ’ A motion for a new trial was overruled and judgment rendered against plaintiff in error in the amount found due. Error was prosecuted to the court of appeals and the judgment of the municipal court was affirmed. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court.
    
      Messrs. A. A. & A. H. Bemis, for plaintiff in error.
    
      Messrs. White, Johnson, Cannon & Neff, for defendant in error.
   Newman, J.

The written lease entered into between the parties in this case expired on the 31st day of July, 1915. It is admitted that defendant in error, on the 11th day of May, 1915, notified plaintiff in error that it desired possession of the premises occupied by it on the 11th day of August, 1915. It appears from the record that plaintiff in error occupied the premises until August 14, 1915. The municipal court made a finding against plaintiff in error on account of the use and occupancy of the premises during the period August 1, 1915, to August 14, 1915, in the sum of $478.48, to which finding no abjection seems to be made on the part of plaintiff in error. The alleged error which counsel urge as their ground for a reversal of the judgments of the lower courts is that the trial court rejected all evidence as to damages claimed by plaintiff in error in its statement of set-off and counterclaim filed in the municipal court. In this statement plaintiff in error predicated its right to a recovery of damages upon the ground that it had been wrongfully evicted from the premises. It claimed the right to the possession of the premises until April, 1916. This right was based upon what was alleged to have been an oral agreement entered into during the month of April, 1915, whereby plaintiff in error was to have possession of the premises for a period of eight months after the expiration of a written lease which expired July 31, 1915. The parol agreement was claimed to have been made at a time when plaintiff in error was in possession of the premises under a written lease. It is true that the landlord and tenant while the latter was in possession of the premises in question could have made a parol agreement before the expiration of the written lease for a tenancy of eight months to continue from and after the original term. But before such an agreement could have been binding the landlord at the expiration of the term of.the written lease must have acquiesced in the continued possession of the tenant' in pursuance of the oral agreement. Bumiller v. Walker, 95 Ohio St., 344.

The instant case was tried to the municipal court without the intervention of a jury. It was for the court to determine whether a parol agreement was actually made. There was a conflict of evidence, and the trial court was not requested to nor did it make separate conclusions of fact and law, and it may be that upon a weighing of the evidence the court found against the plaintiff in error on the question whether or not the parol agreement was. actually made. We cannot say there was no evidence which would warrant the court in reaching such a conclusion. This alone would defeat the right of plaintiff in error in the claim for damages made by it in its statement of set-off and counterclaim.

But assuming that a parol agreement had been made by the parties in April, 1915, it is uncontroverted that on May 11, 1915, the tenant was notified by the landlord that it desired possession of the premises on August 11, 1915. This is certainly inconsistent with the claim that the landlord assented to and acquiesced in the continued possession of the tenant after the expiration of the written lease in pursuance of the oral agreement. The establishment of this fact is necessary before a tenant can avail himself of the terms of a parol agreement such as is claimed to have been made in this case. Not only could the trial court have found that there was no acquiescence, but also that there was a repudiation of the agreement by the landlord, if any agreement was made. As was said in the opinion in Bumiller v. Walker, supra, either party may repudiate his own agreement before the same has been validated by possession taken thereunder.

While counsel for plaintiff in error in their pleading in the municipal court based their claim for damages solely upon the breach of the parol agreement alleged to have been made in April, 1915, yet in oral argument and in their briefs filed in this court they suggest that if plaintiff in error was not a tenant for eight months under the parol agreement, it nevertheless became a tenant from year to year by holding over after July 31, 1915, and was therefore wrongfully evicted from the premises in August of that year. The right to hold for another year after the expiration of the term of a written lease requires the assent of the landlord, either express or implied. By remaining in possession without any new arrangement the tenant is regarded as offering to take the premises for another year upon the terms of the tenancy which has just expired. The landlord may treat him as a tenant for a year at the same rent, upon the same terms and conditions of his prior occupancy, or as a trespasser, at his election. But if the landlord accepts rent or acquiesces in such holding over for a considerable time, his election will be regarded as made in favor of the tenancy. Gladwell v. Holcomb et al., 60 Ohio St., 427, and B. & O. Rd. Co. v. West, 57 Ohio St., 161.

But in the instant case there was no acceptance of rent by the landlord, and it is admitted that on the 7th day of August, 1915, seven days after the expiration' of the written lease, the landlord gave to the tenant notice to quit the premises as required by statute, after having on May 11 given notice in effect that he did not intend to prolong the tenancy for another year. The trial court could well have found from the evidence that the instant case did not come within the law announced in the cases we have just cited.

Our conclusion therefore is that there was no right on the part of plaintiff in error to continue in the possession of the premises, either for eight months, under a parol agreement, or for another year after the expiration of the written lease, on account of a holding over. It follows then that there was no wrongful eviction and the trial court was correct in refusing to consider any claim for damages.

Judgment affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.  