
    LANDLORD AND TENANT — EVIDENCE.
    [Lucas Circuit Court,
    February 5, 1897.]
    Haynes and King, JJ.
    
      Henry Strong et al. v. Theodore Schmitt.
    3. Oral agreement between Lessee and lessor.
    Where the lessee in leasing certain premises and before the execution of a written lease has an oral understanding with his lessor that he io to receive a rebate on his rent at the end of the year: Held, that the whole contract was merged into the written one, and it was error for the court to admit testimony to show that there should be a rebate by virtue of some oral arrangement made prior to the execution of the written lease._
    
      2. Tenant by the Year Holding Over.
    Where one leases premises for one year, renewable at the end of the year and such lessee at the expiration of the second year held over under, and according to the terms of the lease; such holding over will be regarded as that of a tenant from year to year and not as a tenant by will, and therefore such lessee will be liable for the whole of the year.
    ERROR.
    
      
       For a subsequent decisionin this case, as to holding over under former contract, rights of . landlord not affected by surrender without agreement, right to take possession for rent and limitation of action for rent to six years, see 8 Circ. Dec., 551.
    
   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 lour 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 plaintiff below, who thereupon filed his 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: Schmitt 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 instalments, 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 Schmitt 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 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, pajdng 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 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 nor agreement- -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.

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 terins of the lease; not as a tenant by will, but as a tenant from year to /ear, and that be 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.

Clayton IV. EvercC Attorney for Plaintiffs in Error.

Pilliod & Tyler, Attorneys for Defendants in Error.

We are clear that under the decisions of the supreme court of this state, that 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 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 be 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 plaintiff 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.  