
    (Sixth Circuit — Lucas County, O., Circuit Court
    Jan’y Term, 1897.)
    Before Haynes Scribner and King, JJ.
    HENRY STRONG, JOSIAH D. COOK, AND GEORGE E. POMEROY v. THEODORE SCHMIDT.
    
      Lease — Oral agreement made at or before execution of the written lease but not carried into same, not admissible in evidence.
    
    An oral agreement alleged to have been made at the time or before a written lease was executed, to the effect that at the end of the year a rebate of SS50 from the amount of the rent stipulated in the lease should be allowed by the lessors, to the lessee, but as to which agreement the written lease is silent, can not be admitted in evidence in a suit for the amount of the rent stipulated in the lease. Besides such an oral agreement would be within the statute of frauds, and not binding.
    
      Lease by the year — Tenant holding over, liable for another year's rent.
    
    Where a tenant under a lease by the year stays over a second year,and at the expiration of the second year holds over and actually pays for several months of .the third year the monthly installments of rent as stipulated in the lease, he will be held as holding by the year, and if he leaves the premises before that year expires, will be liable for the rent for the balance of the year, although such lessee notified the lessors on the expiration of the second year that he would not take for another year, but only from month to month, the lessors refusing to accept such proposition.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

An action, entitled as above, was brought first in a justice’s court, and then taken to the common pleas by appeal, to recover for four months’ rent of certain premises in this city (Toledo). The case in the common pleas was tried to the court without the intervention of a jury, and judgment was rendered against the plaintiffs below, who thereupon filed their petition herein to reverse the judgment of the court of common pleas, which is the case now before us.

The record shows this state of facts: Schmidt leased of the plaintiffs in error certain premises, on Superior street in this city, for a period of time, at a certain price, the same payable in monthly installments, and the original, lease was for one year, and perhaps renewable at the end of a year; but, be that as it may, at the end of the second year the controversy commences. It is claimed on behalf of Schmidt that when the original lease was made, there was an oral understanding that there was to be deducted from the whole year’s rent (which was $600),$50,leaving him to pay actually $550; and, secondly, he claims that at the expiration of the second year he notified the parties that he would not lease another year, by the year, but would lease by the month.

Testimony is given tending to show that a new lease being presented to him, he refused to sign it. The lessors thereupon notified him that they should hold him for the full year, They did not accept his proposition, or recognize his right to make any such a proposition. However, he remained upon the premises, paying his rent, for about four months, or perhaps more, and then left the premises; and this suit is brought for the amount claimed to be due for the remainder of the year. It is claimed on behalf of the defendant in error that this original contract was a valid contract, whereby it was agreed that there should be a rebate of fifty dollars a year. Secondly, that the arrangement that was made at the expiration of the year mentioned, was such as that the- court will enforce it — that it was a valid arrangement; and he claims further, that if he held over, he held over by sufferance, and not for a year, either at law or in fact.

Without going through this testimony, or discussing it at any length, we are satisfied of this: that when the contract was drawn, whatever may have been said at the time, there was nothing in the contract, no other arrangement, than that the lessee was to pay $600 a year, being $50 per month. By the settled rule of law, the whole contract at that time was merged into the written contract. There was no agreement that there should be another contract, nor was any such other contract recognized in the lease. The court therefore erred in admitting testimony to show that there should be a rebate of $50 a year by virtue of some oral arrangement made prior to the execution of the written lease.

Clayton W■ Everett, for Plaintiffs in Error.

Pillied & Tyler, for Defendant in Error.

Secondly, we are of the opinion that the party, when it came to the expiration of the second year, held over under and according to the terms of the lease, not as a tenant by will, but as a tenant from year to year; and that he paid the rent for some months,and recognized the tenancy' — although he was claiming at the time, perhaps, that he should have it only from month to month.

We are clear that under the decisions of the Supreme Court of this state, no, arrangement or agreement made between the parties in the way claimed by defendant in error would be valid or binding, and that the court could not rightfully take such alleged arrangement into consideration, the same not being in writing, and being clearly within the statute of frauds.

There was some contention that there was a surrender of these premises. We are of the opinion that there may be an oral surrender of premises, but there must be a delivering up of the premises. Nothing of that kind occurred here, but the party held on, and the evidence is clear that he was told that he would he held according to the terms of the original lease, for a year.

We are therefore of the opinion that the court of common pleas erred in dismissing the petition of the plaintiffs below, and^that it should have rendered judgment for the plaintiffs below, and the judgment of the court of common pleas will be reversed and the cause remanded for a new trial, and for further proceedings according to law.  