
    Hellebush et al., Appellees, v. Tischbein Apothecaries, Inc., Appellant.
    
      (Decided June 22, 1936.)
    
      Messrs. Clark S Robinson, for appellees:
    
      Messrs. Nichols, Morrill, Wood, Marx & Ginter, for appellant.
   Matthews, J.

This is an appeal on questions of law from the Municipal Court of Cincinnati. The appellant, Tischbein Apothecaries, Inc., was the defendant in the trial court, and the appellees, Fred A. Hellebush and Charles Leverone, were the plaintiffs.

The action was to recover $800 with interest, which the appellees claimed was due them from the appellant as rent under the terms of a lease of certain real estate. The case was submitted to the court without the intervention of a jury. The court found in favor of the appellees and rendered judgment for the full amount, with interest and costs.

A written lease was entered into by the parties whereby the appellees leased the premises to the appellant for one year commencing on the 1st day of May, 1934, “at a rental of two hundred ($200) dollars per month payable on the first day of each and every month during the term of this lease, in advance.” The appellant continued in possession of the premises after the term until September 1, 1935, when it vacated the premises. This action, was to recover rent for the months of September, October, November, and December, 1935.

At the trial, evidence was introduced by the appellant tending to show that prior to the expiration of the term created by the written lease there were conversations between the parties relating to the eonditions to govern after the expiration of the one year tenancy, created by the -written lease. This evidence was contradicted by other witnesses who testified'that no snch conversations took place prior to the expiration of the. one year. According to the evidence most favorable to the appellees nothing was said until the latter part of July, 1935, when the agents of the appellees told appellant that they thought “they were on another year on their lease.” This was in response to a request for a reduction in the amount of the rent. There is no evidence that the appellees told the appellant that if it continued to hold over such holding would be regarded by them as a tenancy for another year. The only conversation that could be construed as notice to appellant was this one of the latter part of July, 1935, which took place almost three months after the expiration of the written lease, and the claim then was that appellant had already bound itself by holding over.

We are required as a reviewing court to indulge every reasonable presumption in favor of the validity and regularity of the judgment under review, and if there is substantial evidence in the record from which reasonable minds might reasonably draw different conclusions the judgment must not be disturbed. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

There is evidence from which the conclusion could be drawn that the appellant without communicating with the appellees in any way continued to hold possession of the leased premises, and pay rent in the same way after the expiration of the year as it had during the year.

The construction of the evidence most favorable to the appellees is that nothing was said by either the appellant or the appellees on the subject until July 28, 1935. This is the date indicated by some of the witnesses and by the appellant’s letter of August 3, 1935. Up to that time there was not the slightest suggestion of any change in their relations under the construction most favorable to the appellees. When the appellant paid the rent for May, June, or July, there was nothing in the act, or any words accompanying them, that differentiated such payments from the payments made prior to the expiration of the year stipulated in the written lease. Under such circumstances can a reviewing court say as a matter of law that the trial court was wrong in finding that the tenancy was from year to year? Unless we can, the judgment should be affirmed.

In determining the rights of parties relating to real estate, as in all other relations, their mutual intentions no matter how manifested control in the absence of some statutory provision requiring expression in some particular form. Taking or continuing in possession, and payment of rent, manifest an intention to create a tenancy, no other form of expressing such intent being required by any statute. Bumiller v. Walker, 95 Ohio St., 344, 116 N. E., 797, L. R. A. 1918B, 96. The intention to create the tenancy under such circumstances is clear. The intention as to its duration is not so clear.

The case at bar does not involve a dispute based on conflicting evidence as to the mutual intention of the parties as to the’ amount of rent payable periodically during occupancy, or their rights under the law when they disagree on that subject, as was the case in Lane v. Greene, 21 Ohio App., 62, 152 N. E., 790.

The case at bar involves solely the question of the duration of the tenancy. If it was a tenancy from year to year then the amount of rent claimed is due notwithstanding the vacation of the .premises by appellant. While the defense of surrender was suggested, we find nothing in the record justifying a reversal of the judgment on that ground.

In Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74, 117 N. E., 25, the court held, as stated in the sixth paragraph of the syllabus, that:

“Possession taken and rents paid under a defectively executed lease creates a tenancy from year to year, or month to month, dependent upon the terms as to payment of rentals, and the lessor, by instituting an action for accrued rentals or for the purpose of ejecting the lessee for nonpayment of rentals, is not thereby estopped to question the validity of such lease.”

The case of Madison Bldg. Assn. v. Eckert, 49 Ohio App., 210, 196 N. E., 789, decided by this court, is almost identical in its facts with the case at bar. There had been a prior valid lease and a holding over without any express agreement. During the holding over, it is true, there was an agreement reducing the monthly payments of rent, but we do not regard this as a substantial fact in the decision of this question. After reviewing the facts, this court said, at page 211:

“We can see no essential difference in principle between a tenancy continuing after the expiration of the term of a lease, or a renewal period provided for therein, and a tenancy under a void lease. In neither case is there existent a contract except by interpretation. It has been held that the tenancy under a void lease is from year to year, or month to month, according to the provision in the lease for the payment of rent. If the rent is for a stated amount per year, though payable monthly, the tenancy is from year to year. If the lease provides for monthly payments of rent only, then the tenancy is from month to month. Wineburgh v. Toledo Corp., 125 Ohio St., 219, 181 N. E., 20, 82 A. L. R., 1315. In that case the court says in the opinion, at page 222:

“ ‘Since that decision [Richardson v. Bates, 8 Ohio St., 257] was made this court has held that an entry by a lessee under a lease, defectively executed, for a term of years, at an annual rental, creates a tenancy only from year to year; if at a monthly rental, the tenancy created" is from month to month. Baltimore & O. Rd. Co. v. West, 57 Ohio St., 161, 49 N. E., 344; Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74, 117 N. E., 25; Toussaint Shooting Club v. Schwartz, 84 Ohio St., 440, 95 N.E., 1158.’ ”

It is urged that the provision in the lease that $200 per month should be paid on the first day of each and every month “during the term of this lease” was the legal equivalent of the reservation of an annual rent. We cannot draw this conclusion. After the expiration of the year the only items of evidence in any way showing intention are the continued occupancy and the payment of rent for the term of one month. That was the rental period or term specified in the prior lease. It does not show an intention on the lessee’s part to bind itself for a longer period. The intention of one of the parties is not sufficient to bind both.

The doctrine whereby a tenant holding over becomes bound at the option of the lessor for an additional term is not grounded in the ancient land law of England. It has been developed by the courts of this country. Massachusetts, following the English tradition, has refused to hold the tenant for another period merely because he wrongfully retains possession during a part of that period.

In Tiffany on Landlord and Tenant, Volume 2, page 1471, it is said:

“It is somewhat surprising that the courts of this country, which have ordinarily shown a desire to mould the law in favor of the tenant rather than the landlord, should have originated and generally adopted a rule, the tendency of which is, in many cases, to operate with considerable severity upon a tenant who is disposed promptly to relinquish possession but is accidentally prevented from so doing.”

To state the case most strongly for the appellees, the record at most shows a failure oi\ the part of the landlord and tenant to agree upon the duration of the term to be created by the tenant holding over after the expiration of the existing lease. There are expressions in the Ohio cases indicating that the landlord at his option has a right to treat the tenant who holds over either as a trespasser or as a tenant for an additional term at the same rent reserved, in the original- lease, in the absence of notice by the lessor in advance of an additional rent. However, the only case that the court has found in which is discussed this exact question of the right of the landlord to impose terms upon a tenant holding over, against the will of the tenant, is that of Lane v. Greene, supra. Discussing the rule that the holding over bound the tenant to pay the rent dictated by the landlord, notwithstanding his dissent, the court, in Lane v. Greene, supra, said at page 67 and 68:

“The rule is not only an unjust one, it is also illogical. Rent is the result of contract. It always proceeds either from contract or by reservation in a conveyance. 2 Tiffany on Landlord & Tenant, Section 211. Of course, the contract giving rise to it may be an implied one, but a contract cannot be implied when one of the parties sought to be bound protests his dissent from the terms of the proposed engagement and expressly disclaims the meeting of the minds necessary to constitute a contract. It is, consequently, out of reason .to say that an implied contract arises when one of the parties is at the time expressly dissenting from its terms.

“The better rule would seem to be that, if a tenant holds over after the landlord has fixed an increased rent, and the tenant is silent as to the new terms, an implied contract arises that the tenant will pay the increased rental, but, if the tenant at the time dissents from the new terms, and thus indicates a situation from which no implication of a contract arises, the tenant can only be held either (1) for the reasonable value of the use and occupation of the premises, or (2) for damages for the trespass, with, under appropriate circumstances, exemplary damages for his willful holding over.”

It was claimed that Moore v. Harter, 67 Ohio St., 250, 65 N. E., 883, had announced the rule that the landlord had the absolute right to dictate the terms and that the tenant was absolutely bound. In discussing Moore v. Harter, supra, the court in Lane v. Green, supra, at page 69, said:

“It must be conceded that the language of -Judge Davis, on page 254 of the opinion, justifies that view, although an examination of the authorities cited by the learned judge shows but one of them supporting the view thus.apparently expressed by him. 2 Tiffany on Landlord and Tenant, Section 210, says that this view of Judge Davis is mere dictum, and points out that such a rule is not only illogical in imputing to the tenant an intention which he has expressly disclaimed, but that it enables ‘the landlord to fix a penalty of any amount for a wrongful holding over by the tenant.’

“The text-writer is right. The opinion, in so far as it purports to lay down a rule where the tenant has dissented from the terms of the new rental sought to be imposed upon him, was outside the record of that case.”

A case that seems in accord with Lane v. Greene, supra, is Abrams v. Sherwin, 269 Pa., 31, 112 A., 235.

If it is beyond the power of the landlord to impose his will upon the tenant in imitum as to the amount of rent, it would seem logical to hold that it was equally beyond the power of the landlord to impose any other terms, such as duration of the lease, upon the lessee against his will. And if the law will not assist the landlord to impose his expressed will upon the tenant in invitum the law will not impose a similar legal obligation in thc'absence of any expression or notice by the landlord to the tenant.

For these reasons the judgment is reversed and judgment is entered for the appellant.

Judgment reversed.

Ross, P. J., and Hamilton, J., concur.  