
    Moore v. Harter.
    
      Tenant holds over after expiration of lease — Landlord notifies tenant of alteration in lease terms — Original lease thus modified — Landlord and tenant — Law of contracts — Leases.
    When a tenant at the expiration of a written lease, holds over as a tenant from year to year, upon the terms of the original lease, and the landlord notifies the tenant, before the beginning of another year, that if the latter holds over into another year the rent will be increased, and the tenant does so hold over, the terms and conditions of the original lease will be modified in respect to the rent so as to conform to such notice, but in all other respects they will continue to be applicable to the new tenancy. Armstrong v. Katten, horn et ah, 11 Ohio, 265, distinguished.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Stark county.
    The defendant in error commenced an action in the court of common pleas of Stark county against the plaintiff in error, alleging that on April 1, 1890, the defendant, here plaintiff in error, entered into possession of certain premises under a written lease at the rate of $450.00 per year; that said defendant continued to occupy the premises from April 1, 1890, to April 1, 1892, and without any further lease continued to occupy the same until April 1, 1895, paying therefor at the rate of $450.00 per year. It was further alleged in the petition that for a considerable time prior to April 1, 1895, the plaintiff notified the defendant that beginning April' 1, 1895, the rent for the said premises would be at the rate of $500.00 per year instead of $450.00 per year; that the defendant gave the plaintiff no notice or intimation that he was dissatisfied with said increase of rent for said premises, but on the contrary, before the beginning of said term, April 1, 1895, he verbally agreed to increase the rental, and the plaintiff says he continued to occupy the premises as he had before done, and entered on the year beginning with April 1,1895, and afterwards, in the month of April, 1895, abandoned and left the premises without notice to the plaintiff of his intention so to do, and that the plaintiff never received- any rent from that time until December 1, 1895, when the premises were leased to William McKinley at an annual rental of $500.00. It is also agreed that the defendant never paid any rental for the year beginning April 1, 1895, and prayer was for judgment in the , sum of $333.28, with interest from December 1, 1895.
    The defendant answered admitting that the plaintiff was the owner- of the premises described, and that he held the same under a written lease up to April 1, 1892, and that he occupied the premises under the lease and extension thereof from April 1, 1S90, to April 1, 1895, and denying all other allegations of the petition. The verdict was for the plain tiff, and after a motion for a new trial judgment was rendered for the plaintiff in the sum of $401.60. with interest from May 1, 1899. The circuit court af- . firmed that judgment. In the charge to the jury the court of common pleas instructed the jury as follows: “I say to you as a matter of law, if you find by a preponderance of the evidence, that prior to April 1, 1895, the plaintiff herself or by her agent or attorney notified the defendant that the rent of said premises in the petition described, for the year beginning April 1, 1895, would be fifty dollars (f50.00) more per year, and if you find by a preponderance of the evidence that the defendant never dissented to said increase, but held over after April 1, 1895, occupying-said premises for any time after April 1,1895, that he might be treated as á tenant of the plaintiff subject to the original lease as amended by such notice, and it will be your duty to find for the plaintiff for the amount prayed for in her petition, provided you should find that nothing has been paid by defendant or any person to plaintiff as rental for said premises, after April 1, 1895, and until December 1,1895.
    “I instruct you also that the landlord, in case the tenant holds over, has a right to elect whether he will treat the tenant as a trespasser or a tenant for one year upon the terms of the original lease, or in case that he has been given notice of an increase of rent to which the tenant has given no dissent, then a tenant on the terms of the original lease as modified by the notice.”
    And this is assigned for error in this Court, as it had been in the circuit court.
    
      Mr. W. B. Sanders and Messrs. Miller & Pomerene, for plaintiff in error.
    
      Messrs. Harter & Krichbaum, for defendant in error.
   Davis, J.

In this case the court charged the jury that if it should find that the plaintiff, before the expiration of the year ending March 31, 1895, notified the defendant that the rent of the premises occupied by him should be fifty dollars more than 'it had been for the year beginning April 1, 1895, and that the defendant never dissented from such increase in the rent but held over after April 1, 1895, then thé defendant would be the tenant of the plaintiff subject to the terms of the original lease as amended by such notice, and that the jury should find accordingly. The jury found for the plaintiff, and the defendant complains that this instruction is erroneous. To us it appears to be strictly correct. It has long been settled in this state that 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; and in the absence of any new agreement with the landlord he holds under the terms of the original lease. Moore v. Beasley, 3 Ohio, 294; Railroad Co. v. West, 57 Ohio St., 161; Gladwell v. Holcomb, 60 Ohio St., 427. It follows that the lessor and lessee may by agreement change the terms of the original tenancy; and if, before the beginning of another year, the landlord notifies the tenant that the rent will be increased and the latter nevertheless holds over into another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason of this is that the tenant must be presumed to have assented to the change. The authorities are numerous and conclusive on this point. Wood on Landlord and Tenant, section 13; Roberts v. Hayward, 3 Car. & P., 432; Digby v. Atkinson, 4 Camp., 275; Hunt v. Bailey, 39 Mo., 257; Brinkley v. Walcott, 10 Heisk. (Tenn.), 22; Despard v. Walbridge, 15 N. Y., 374; Gardner v. Board of Commissioners, 21 Minn., 33; Amsden v. Floyd, 60 Vt., 386; Reithman v. Brandenburg, 7 Colo., 480; Higgins v. Halligan, 46 Ill., 173; Griffin v. Knisely, 75 Ill., 411; Hoff v. Baum, 21 Cal., 120.

In Hunt v. Bailey it was said, although it would be hardly fair to say that it was decided, that: “If the tenant manifests his dissent from the terms proposed for increased rent, then no privity of contract will be created for the increased rent; and if he holds over it will be considered to be on the terms of the lease by which he originally gained possession.” The better opinion and the current of authority seem to be the other way. Roberts v. Hayward; Brinkley v. Walcott; Reithman v. Brandenburg; Griffin v. Knisely, supra. The tenant’s dissent from the terms proposed by the landlord amounts to nothing unless the latter accepts it, because the presumption is that one holding over, after notice from the landlord that a change of terms would be required, is presumed to do so on the terms proposed by the landlord. Otherwise he would put himself in the wrong and would be liable to be treated as a trespasser.

Armstrong v. Kattenhorn, 11 Ohio, 265, and the authorities which support the point decided in that case are not pertinent here. The doctrine of Armstrong v. Kattenhorn is that if the possession of the tenant “can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession or to a different contract, the statute applies.” The possession in that case was held to be ambiguous and as easily referable to the old lease as to the new one, and hence that the latter was within the statute of frauds and void. Although the statute of frauds declares that leases not in conformity with the statute shall be void, yet that will not prevent a periodical tenancy, subject to the terms of the original lease, from arising by taking possession under the invalid lease and paying rent in accordance therewith. Tress v. Savage, 4 El. & Bl., 36; Clayton v. Blakey, 8 T. R., 3; Railroad Co. v. West, 57 Ohio St., 161; Gladwell v. Holcomb, 60 Ohio St., 427, 433. And that is precisely that which was done in this case, and in all the cases cited above as included in the same class. The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions. It could not be referable to the former lease without showing that the landlord had consented to withdraw the conditions.

The judgment of the circuit court is therefore

Affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur,  