Opinion
Docket No. 45, Calendar No. 34,669.
Submitted January 8, 1930.
Decided April 7, 1930.
Error to Clinton; Searl (Kelly S.), J. Submitted January 8, 1930. (Docket No. 45, Calendar No. 34,669.) Decided April 7, 1930.
Assumpsit by Fred C. Burk against Curt E. Mueller and others for rent of realty. From a judgment for $1,250, plaintiff brings error. Reversed, and judgment for $1,500 ordered entered.
Fehling Parmenter, for plaintiff.
On January 2, 1926, plaintiff offered, in writing, to lease to the defendants what is known as the Triangle Motor Truck property in the city of St. Johns from January 2 to June 30, 1926, at a rental of $250 per month. It contained the following paragraph:
"In consideration of all the foregoing payments to be made by you, you may also at your option renew said lease on or before July 1, 1926, for a further period of six months on the same rental of $250 per month, payable monthly in advance provided you shall also on or before July 1, 1926, notify me of your desire to renew said lease and shall also pay to me in addition to said rent the sum of $1,000 on or before July 1, 1926, and further agree to pay the addition of $1,000 on or before December 31, 1926, and in consideration of the performance of all the foregoing covenants you may at your option purchase all of the property mentioned above to be covered by said lease for the sum of $30,000 and I agree that in case you shall lawfully exercise your said option of purchase all of the sums mentioned above which shall have been paid by you to me shall be applied upon said purchase price of $30,000 and reduce the same accordingly."
Provisions for making the additional payments in case the option to purchase was exercised were then added. This offer was not accepted by the defendants in writing. A written lease was thereafter prepared, but was not executed by them. They, however, took possession of the premises, and continued to occupy them until about December 1, 1926. They paid the rent for the first six months, as provided for therein. In this action plaintiff seeks recovery for the rent from July 1st to December 31st, inclusive, and also claims the right to recover the two $1,000 payments provided for in the paragraph of the offer quoted above. It is his claim that defendants' occupany after July 1st had the force and effect of a renewal for an additional six months, and that the payment of the $2,000 was a condition thereof.
Trial was had before the court without a jury. Findings of fact and conclusions of law were filed, on which judgment was entered for plaintiff for $1,250, rent due from July 1st to November 30th. Appropriate requests for findings and exceptions to the denial thereof were filed by plaintiff.
If we treat the offer and its acceptance by entry upon and occupation of the premises as a lease, the rights and obligations of the defendants thereunder became terminated on June 30th. They did not obtain a renewal or notify the plaintiff of their desire to renew, as provided for therein.
While a party in possession under a lease for a stated period, with the privilege of renewal, by his continued possession thereafter may be said to elect to hold for the renewal period ( Delashman v. Berry, 20 Mich. 292 [4 Am. Rep. 392]), yet in Cooper v. Joy, 105 Mich. 374, 377, it was held that:
"Where notice is required of the lessee's intention to claim the extended term, notice must be given, or the intention must be otherwise manifested; and that a naked holding over is insufficient to warrant a finding that the lease has been extended."
The defendants have signed no obligation to pay plaintiff anything. They occupied the premises for the purpose of experimenting upon an invention of the defendant Mueller for the production of industrial alcohol and farm fertilizer. Steps were taken towards the organization of a corporation which would purchase plaintiff's property agreeably to the terms of his offer, and in which he had expressed a willingness to take some stock. But, owing to disagreement among the parties interested, this plan was abandoned.
On July 1st, the plaintiff might have dispossessed the defendants. Their occupancy thereafter cannot be treated as a renewal of the lease or an assumption by them of any obligation incident thereto. We find no error in the disallowance of plaintiff's claim for the two $1,000 payments.
The December rent presents a different question. It is conceded that, although the defendants removed all of their property from the premises in November, they did not surrender possession to the plaintiff until December 5th or 6th, when the key was delivered to the plaintiff's brother. Assuming that such delivery was, 'in effect, a delivery to the plaintiff himself, defendants' liability to pay the rent for that month accrued on December 1st, and they could not escape liability therefor by the surrender of possession several days later.
The judgment entered should have included the December rent of $250. It will be reversed and set aside, with costs to plaintiff, and the cause remanded with directions to the trial court to enter a judgment for the plaintiff for $1,500, together with interest thereon from December 1, 1926, to the date of such judgment.
WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, NORTH, and FEAD, JJ., concurred.