
    WEARE C. LITTLE v. THE UNITED STATES.
    [No. 13224.
    Decided March 3, 1884.]
    
      On the Facts.
    
    The post-office building iu Albany is occupied .for a term of years under a written lease. Before the expiration thereof, there is an oral agreement that the lessee may hold over, either party having the right to terminate the holding by a notice of sixty days. On the last day of the term the postmaster gives the notice. The claimant denies the oral agreement and contends that by the law of New York anew agreement for a year was implied.
    I. The law of New York which implies an agreement on the part of a tenant holding over to hold for a year upon the terms of the former lease, applies only to cases where there is no express agreement be tween lessor and lessee. If it be agreed though by parol, that the occupancy contiuue till terminated by notice, the case is taken out of the operation of the New York law.
    II. An agreement on behalf of the Post-Office Department need not be in writing. The Revised Statutes, § 3744, applies only to the War, Navy, and Interior Departments.
    
      The Reporters'1 statement of the case:
    This case the claimant brought by the voluntary filing of his petition. The following are the facts so far as they are involved in the opinion of the court:
    I. The lease annexed to the petition was executed as alleged in the petition j and the leased premises were occupied during the year ending March 31, 1877, b,y the Albany, N. Y., post-' office, and the rent for that year was duly paid. The same premises had been occupied and used as the post-office for three years before the 1st of April, 1876.
    II. In March, 1877, one J. C. Belden, special agent of the Post-Office Department, was sent to Albany in reference to the selection of a building for the post-office, and he received the following letter of instructions in relation thereto:
    “ Post-Oeeice Department,
    “Division oe Mail Depredations,
    “Oeeice oe Ohiee Special Agent,
    “ Washington, I). (7., March 15, 1877.
    “ J. C. Belden, Esq.,
    “ Special Agent P. O. 77., Salem, New Jersey:
    
    “Sir: I transmit herewith letter of this date from the Acting First Assistant Postmaster-General, together with three enclosures relative to the lease of premises for post-office, Albany, N. Y., with the request that you proceed to Albany, and in conjunction with the postmaster at that place give the subject tlie greatest care and attention, with the view of obtaining the best available location at the lowest price. In receiving propositions it is necessary that the office be thoroughly fitted in accordance with the requirements of the Department. You will notice that the time is very short, and if another location is recommended the consent of present lessors to occupancy of building now used for post-office until another can be prepared is advisable. During the investigation any inquiries you may have cause to. make by telegraph will be promptly submitted and answered.
    “ Yery respectfully,
    “David B. Parker,
    “ Chief Special Agent.”
    
    III. Special Agent Belden went to Albany, in pursuance of said letter of instructions, and had three interviews with the claimant in relation to the matter of the continued renting of the premises for the post-office. At the second interview the claimant wrote and handed to said Belden the note to the Postmaster-General, which is contained in the petition, in the following words:
    “ To the Postmaster- General of the United States, \
    “ or Post-Office Department:
    
    “ The United States can retain the premises No. 69 North Pearl st., in the city of Albany, now occupied by the United States as a post-office, for another year, on the same terms as they now have it, viz, four thousand dollars p’r annum, payable quarterly.
    “Weare O. Little.
    “ Albany, March 21,1877.”
    At the third interview, which was after the date of said note, it was agreed between said Belden and the claimant that the claimant would give the government sixty days’ notice to quit the premises, and he would expect the government to give him sixty days’ notice in vacating the premises; and said Belden, immediately after said third interview, came to Washington, and on the 30th of March made report to the chief special agent of the Post-Office Department of the agreement he had made with the claimant.
    
      IY. On the 31st of March, by authority of thé Post-Office Department, the postmaster at Albany delivered to the claimant the following notice:
    “ Post-Office, Albany, N. Y.,
    “ Albany, March 31, 1877.
    “To W. O. Little, Esqr.:
    “ Take notice that the premises No. 69 North Pearl street, in the city of Albany, occupied by the United States Government as a post-office, will be vacated by said government on the first day of June, A. D. 1877, and on that day the government will quit possession and remove from the said premises now occupied by them..
    “By order of the Post-Office Department of the United States.
    “Yours, &c.,
    “Wm. H. Craig,
    “ Postmaster.”
    Immediately after receiving this notice the claimant went to the post-office, with his counsel, and notified the postmaster, or the deputy postmaster, that he would not accept the surrender of the premises, and that he should hold the government for the rent thereof for the entire year.
    Y. Towards the close of May, 1877, the keys of the premises in controversy were sent by the postmaster to the claimant. The messenger left them on his desk, notwithstanding the claimant’s book-keeper told him that the claimant was not in, and that he, the book-keeper, could not receive them, and that the claimant was going to hold the government for the rent of the building for the year. The claimant immediately returned them, and on their being again sent to him, he again immediately returned them, with the following note:
    “Albany, N. Y., May 31, 1877.
    “William H. Craig, Esq., Postmaster, Albany:
    
    “Dear Sir: I return the keys left on my desk to-day for the reason that United States lease of the office does not expire until 1st April next.
    “ With respect, yours truly,
    “Weare C. Little.”
    YI. The United States vacated the premises some time in May, 1877, but claimant refused to receive the keys or possession at that time, or at any time during the year beginning April 1,1877, and always assigned as the reason for such refusal that the government was held as a tenant for the entire year.
    VII. The postmaster at Albany tendered to the claimant $670.33 as rent in full up to the time the United States vacated the premises; but the claimant refused to accept it, on the’ ground that he held the government as tenant for the entire year.
    VIII. The claimant received no rent for the premises in controversy during the year for which payment is claimed, and ■did not succeed in leasing them permanently till some time in 1879 or later.
    
      Mr. George A. King for the claimant:
    The claim is based upon the rule of the common law, which ■continues to be the law of New York, that a tenant for years, holding over after the expiration of his express lease, with the consent, express or implied, of his landlord, becomes a tenant from year to year on the terms of the original lease; the tenancy, to be determined by a notice of six months, to take effect at the end of the year. (See Wins., Real. Prop., 360; Conway v. Starkweather, 1 Denio, 113 ; Sehuyler v. Smith, 51N. Y., 309; JBaeon v. Brown, 9 Conn., 334; Morgan v. United States, 14 O. Cls., 319 ; Semines v. United States, 14 C. Cls., 493.)
    The claimant received no rent from the building during the entire year for which he now claims it, as the government only held the premises for two months of that year, from April 1 to June 1, 1877, the rent for which period the claimant refused to accept, although it was tendered to him by the government.
    At the time the claimant made his offer to let the government have the building for another year on the same terms, $4,000, March 21,1877, and at the time of their holding over, April 1, 1877, ample appropriations were in existence to pay the entire rent for the year now in question, from April 1,1877, to Npiff 1> 1878.
    The government, therefore, by holding over after the expiration of the express lease, made itself liable by the common law, as well as by the law of New York, to be held at the option of its landlord, as a trespasser or a tenant for the following year; and the claimant having, bothjjbefore and after the holding over, exercised his option to hold it as a tenant and not as a trespasser, it is bound accordingly and must make payment for the year.
    The rights and liabilities of the parties must be determined exclusively by the law of the State where the premises in question are situated. (McGoon v. Scales, 9 Wall., 23, 27.) (See also United States v. Crosby, 7 Crunch, 115; Clark v. Graham, 6 Wheat., 577 ; McCormick v. Sullivant, 10 Wheat., 192 ; Watts v. Waddell, 6 Pet., 389; Brine v. Insurance Co., 96 U. S., 636.) The same principle was asserted in a case to which the United States was a party. (United States v. Fox, 94 U. S., 315; Witt v. Mayor of New York, 5 Eobertsou, 248; Bacon v. Brown, 9 Conn., 334; Wms., Eeal Prop., 360; Wright v. Darby, 1 T. E., 179; Morgan v. United States, 14 O. Cls., 319; Semmes v. United States, 14 O. Cls., 493 ; Conway v. Starkweather, 1 Denio, 113; Despard v. Walbridge, 15 N. Y., 374; Reeder v. Sayre, 70 N. Y., 180; Laughranv. Smith, 75 N. Y., 205; Holsman v. Abrams, 2 Duer, 485; Park v. Castle, 19 How. Prac., 29; Blumenberg v. Myers, 32 Call., 93, 97.)
    If the words used were understood differently by Belden and Little, there is no agreement on which the court can act. “There is no contract unless the parties thereto assent; and they must assent to the same thing in the same sense.” (1 Parsons on Contracts, 475.) (See also Utley v. Donaldson, 94 U. S., 29, and the numerous authorities there cited by Swayne, J.; also National Banker. Hall, 103 U. S., 43.)
    
      Mr. André Brewster (with whom was the Assistant Attorney-General) for the defendants:
    The parol agreement which we have proved provided for a time when the written lease no longer existed. The terms of tha,t lease could not exist beyond the moment when the tenancy under it ceased, and the parol agreement took effect immediately upon the expiration of the written lease, and not until then.
    The claimant asks the court to set aside this parol agreement upon the ground that the law provides that all contracts made by or with the Post-Office Department must be in writing, &c., yet fails to indicate where such a statute can be found; in fact, there is none. This question is analogous to that decided in McCollum's Case (17 O. Cls. E., 92).
    
      The claimant, having 'agreed with the government to its further occupation of his premises, has waived his right, under the statute, to treat the government as holding over and is estopped from settling up that right. (Ransom v. Oity of Neto York, i Blatchford, 157; also Buel v. Trustees of Lock-port, 2iComstock, 197.) An estoppel arising from an express waiver of a right is too well settled to need further argument.
   Drake, Oh. J.,

delivered the opinion of the court:

The Post Office Department occupied for the post office in Albany, N. Y., under a written lease, certain premises belonging to the claimant. The.term expired with the 31st of March» 1877; but the Department held over the premises till the 31st of May following. In the State of New York the law appears to be, that if, after the expiration of a lease for a year, the tenant holds over, the law will imply an agreement to hold for a year upon the terms of the former lease. Upon this law the claimant bases his demand for $1,000, as a year’s rent from and after April 1, 1877.

We take it to be clear that that rule applies only to a case where there is no special agreement between the lessor and the lessee in regard to the matter. In this case we find that there was an agreement between the claimant and an agent of the Post-Office Department that the claimant would give the government sixty days’ notice to quit the premises, and he would expect the government to give him sixty days’ notice in vacating the premises. ,

The findings disclose that on the 31st of March, 1877, the postmaster at Albany, by order of the Post Office Department, gave the claimant notice in writing that his premises would be vacated by the government on the first day of the ensuing June 5 and it is further found that the premises were vacated in May, and that the keys thereof were taken to and‘ left at the claimant’s place of business, by the Albany postmaster, on the 31st of that month. The claimant returned them to the postmaster with a note informing him that the government lease of the premises did not expire till April 1, 1878; and not till that day did the claimant resume possession.

The claimant’s verbal agreement with the special agent of the Post-Office Department disabled him to take that position sue-cessfully. The government did no more than avail itself of a consent which the claimant had voluntarily given to the vacation of the building at any time after April 1, 1877, provided he received sixty days’ notice of the intended vacation. True, when on the 31st of May he found the keys at his place of business, he immediately returned them to the postmaster, and claimed that the government was his tenant till April 1, 1878; but, nevertheless, we find, .upon the evidence, that the agreement was made as stated in finding III, and that seems to us to end the matter.

It was contended that the special agent’s agreement was not binding on the government, because not in writing, and if not binding on the government, it was not on the claimant. We know of no statute which requires the contracts of the Post Office Department for the renting of post-office accommodations to be in writing. On the contrary, it is a notable fact, that while section 3744 of the Revised Statutes makes it “ the duty of the Secretary of War; of the Secretary of the Navy, and of the Secretary of the Interior to-cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing”; there is no such provision as to the Postmaster-General.

The claimant is entitled to recover $670.33 for rent of the premises from April 1 to May 31, 1877, and for that sum judgment will be entered.  