16 Colo. 83 | Colo. | 1891
delivered the opinion of the court.
The conclusion'of-the: trial court that Atkinson’s tenancy was from month to month only is amply supported by the evidence, and'cannot be disturbed in this court. The case, therefore, presents but a single question for our consideration, viz., can a landlord, against his tenant’s objection, arbitrarily fix by notice the amount of rent which the latter must pay when holding over after the expiration of the term of such tenant’s lease? The trial court decided the landlord had- such right. Its conclusion was probably founded to some extent upon the opinion of the case of Hurd v. Whitsett, 4 Colo. 77,— a case decided under a statute which has since been repealed.
This statute provided that, if any person held over after notice to quit, and in violation of his lease, he would by such conduct become chargeable with certain additional liabilities. It also declared that the notice shall operate to create and establish, “ as a part of the lease or agreement, the terms and conditions specified in said notice.” The repeal of this statute is indicative of an intention on the part of the legislature to change the rule therein provided for,
A tenant thus holding over is regarded merely as a tenant at will, and only liable for an increase of rent when the value of the use and occupation of the premises is shown to exceed the rate fixed by the lease. Galloway v. Kerby, 9 Ill. App. 501; Meaher v. Pomeroy, 49 Ala. 146; Gallagher v. Himelberger, 57 Ind. 63.
Applying the foregoing rule to this case, and it follows that, although the trial court found that the tenancy was only from month to month, and subject to termination by the landlord accordingly, this will not permit the landlord to fix the tenant’s liability -for rent at a greater price than under the previous lease against said tenant’s protest, and without reference to the value of the use, as has been attempted in this case.
The rule announced by the county court, and contended for here by counsel for defendant in error, is not only contrary to the general current of authority, but is so unreasonable and unjust that it ought not to be followed. Its unfairness is well illustrated in this case.' The evidence shows that the rent had been fixed by the parties at $25 per month; that a bona fide dispute had arisen between them as to the length of the term, and, although upon the evidence it has been decided that the tenancy was only from month to month, and subject to termination by the landlord accordingly, to allow him to fix the tenant’s liability for rent, against such tenant’s protest, would be subjecting the latter to a demand entirely disproportionate to anything warranted by his conduct. Had Atkinson remained silent after receiving notice of the attempted in
The judgment of the county court will be set aside and a new trial ordered.
Reversed.