
    Elevator Company v. Brown.
    1. Lessees brought suit against their lessor, under a clause in. their lease which entitled them, at the end of their term, to payment for improvements placed by them on the premises. The lessor defended on the ground that by a clause in the lease the lessees were required to renew, if the lessor should, during the term, “ purchase the title in fee simple to said premises,” in which event the lessees should not be entitled to payment for improvements until the expiration of the term in renewal ; and that he had, during the original term, pui-chased such title in fee simple, and given the lessees notice that he required them to renew : Held, that in such action it is not sufficient for the lessor, in proving his title, to show that he had, during the term, made an agreement with the owners of Ihofee for the put chase of the premises, theevidence further showing that he had not, during the term, paid the purchase-money or received a conveyance.
    3. Whether, temporary and partial occupancy of premises by lessees, after the expiration of the term mentioned in the lease, should be regarded as consent to or in effect a renewal, under a clause in the lease by which the lessees agreed to renew in case the lessor purchased the title in foe during the term, is to be determined, not merely from proof of such occupancy, but from the facts in connection with such occupancy.
    Motion for leave to to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    Samuel S. Brown and James M. Schoomaeker, administrators of William H. Brown, brought suit in the superior court of Cincinnati against the Canal Elevator and Warehouse Company, a corporation, to recover $2,799, with interest from September 1, 1879, being the cost of certain improvements made by said William H. Brown and one Murphy while in possession of certain real estate under a lease from said corporation, Murphy having sold his interest in the claim to Brown.
    The cause was heard in special term on petition, answer, reply and testimony. The court, finding diifi.cult questions of law and fact to be involved, reserved the cause for decision in general term. In the general term, judgment was rendered in favor of Brown’s administrators for $3,023. This application for leave to file a petition in error in this court is made on behalf of the corporation.
    •_ There is no dispute about the facts. So far as it is necessary to state them, they are as follows: April 21,1871, the corporation leased to William II. Brown and Samuel B. Murphy, partners, as Brown & Murphy, coal dealers in Cincinnati, the privilege of occupying and using two parcels of real estate, to be used by them in their business, from May 1, 1871, until September 1, 1879. The lessees were to furnish money, not exceeding $2,500, for the erection of coal bins on the premises, and pay certain rents, taxes, &e.
    One of the parcels of real estate was held by the lessor by perpetual leasehold. With respect to the other parcel, it was agreed, in the lease to Brown & Murphy, “that in case the said lessor shall, during said term, purchase the title in fee simple to said premises, the said lessees hereby agree to bind themselves and their legal representatives to renew this lease, at the expiration of said term, . . . for the further term of eight years from said 1st day of September, 1879, upon the same terms, conditions, covenants and agreements as above set forth.” And it was further stipulated, “that at the expiration of the term of this lease, or, in case of renewal, at the expiration of such term of renewal, the said party of the first part shall pay to the said parties of the second part the amount so furnished and paid by them as aforesaid for the said bins and improvements, without interest.”
    On August 30, 1879, the lessor gave notice to the lessees that it had purchased the title in fee simple to the parcel of real estate referred to in the clause of the lease above quoted, and the lessees were requested to renew the lease in accordance with the requirements of such clause.
    The premises referred to in the notice had been owned by five persons as tenants in common. Two of them lived in Kansas, where their acknowledgment of the deed conveying the property to the corporation was taken September 8, 1879, and the deed was entered of record in Hamilton county, Ohio, on September 19, 1879. The consideration for the premises was $6,000, of which amount the sum of $1,000 was paid on delivery of the deed, and a mortgage on the premises was executed by the corporation to the grantors for the remaining $5,000. '
    
      When the notice above mentioned was given by the lessor, the lessees immediately declined to renew the lease. On September 2, 1879, they vacated the premises, and within two days thereafter returned the keys to the office of the lessor. They left in one of the bins three hundred and seventy-five bushels of coal until September 18,1879, being unable to dispose of and cause it to be removed before that time.
    
      Stallo, Kitbredge c§ Sohoonmaclter, and A. B. Huston, in support of the motion :
    1. The lessor could insist on a renewal without an actual conveyance to or payment of the purchase-money by him. Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176 : Gilbert v. Port, 28 Ohio St. 276 ; Sugden on Vend. (8 Am. ed.) 291.
    2. The holding over was a renewal of the lease. Pollock on Con. 414; Taylor’s L. & T. § 22; Delachman v. Berry, 20 Mich. 292; 1 Daily, 419 ; 2 Daily, 213.
    
      Sage ds Hinkle, contra :
    
    The lessor did not purchase the fee during the terra. Fry on Spec. Per. §§ 290, 292, 733, 797; 2 Chitty on Con. 1086 ; Job v. Bannister, 26 L. J. Ch. 125 ; s. c., 39 E. L. & Eq. 599 ; Brook v. Garrod, 27 L. J. Ch. 226 ; 1 Chitty on Con. 136 ; Platt on Leases, 753; Adams’ Eq. *89 ; 1 Fonb. Eq. *431; 2 Parsons on Con. 541; 1 Wash. R. P. (4 ed.) 69 ; Curtis v. Burdick, 48 Vt. 166; Brown v. Williams, 28 Me. 254; Chase v. Ins. Co., 22 Barb. 527; Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176.
    2. There was no holding over which operated as a renewal. Taylor’s L. & T. §§ 22, 58 ; 1 Chitty on Con. 172 ; Veazie v. Bangor, 51 Me. 509 ; Wash. R. P. *383 ; 2 Hillard on Con. 172; Fry on Spec. Per. § 841; Kerr on Fraud, 80, 402; Cooper v. Phibbs, L. R. 2 App. Cas. 149 ; Evarts v. Strode, 11 Ohio, 480; Dixon v. Markland Canal, 5 W. & S. Sc. App. 445 ; Wheeler v. Smith, 9 Howard, 55.
   Okey, 4.

This suit to recover for the value of-improvements would have been denominated, under our former practice, an action at law. Its nature is not changed by the blending of suits at law and in equity under the general name of civil action. Nor is the distinctive character of the suit changed by the answer of the corporation, in which a recovery for rent is demanded upon the ground that there was a renewal of the lease. The only contingency upon which the lessees were required to renew, was that the lessor should, during the term mentioned in the lease, “ purchase the title in fee simple to said premises.” This condition was not satisfied by a mere agreement for such title, and the title acquired subsequently to September 1, 1879, was not available to the lessor in making defense to the action in the court below, on the issue there presented.

The lessor insists, however,- that the lessees continued to occupy the premises subsequently to September 1, 1879, and hence must be regarded as consenting to such renewal. But whether temporary and partial occupancy of premises by lessees should be regarded as consent to and in effect a renewal, under such a clause in a lease, must be determined from the circumstances, and not merely from the fact of such occupancy. Looking to the terms of the notice to renew, given by the lessor on August 30, 1879, the refusal of the lessees to renew, their removal from the premises on September 2, 1879, and the return of the keys to the office of the lessor shortly thereafter, we are led to the conclusion that there was no act of the lessees which should estop them to deny such renewal The fact that a small quantity of coal was permitted to remain in one of the bins until September 18,1879, is explained in the testimony, and cannot properly lead to any other conclusion than the one already stated, for the intention not to renew had already been manifested in unmistakable form.

There is no error in the record.

Motion overruled.  