Premises were demised by written lease for one year in consideration of a stated rent. The tenant held over his term two months. The landlord then sued to recover rent for the premises for one year after the expiration of the first term upon the theory that the tenant, by holding over, became liable for the rent of the leased premises for a year at the same rent fixed in the first lease. The tenant had a verdict and judgment and the landlord prosecutes error.
The defense of the tenant, so far as material here, was that he held over in pursuance of an agreement with the landlord that he might do so, paying rent for the time he occupied at the same rate per month as he paid under the first lease. The evidence shows that in November, 1889, one Jacob E. Hendrix owned the premises and on said date demised it by a written lease to Augustus B. Slater for one year, or until the 15th of November, 1890, in consideration of a rent of $750 paid and agreed to be paid by Slater; that after taking possession of the leased premises Slater purchased a lot in the city of Omaha, where the leased premises were situate, and began the erection thereon of a dwelling. Before the lease expired Slater notified Hendrix that he had purchased a lot and was building a house but that it would not be ready for occupancy until about January, 1891; that he intended to move into it as soon as it was ready for occupancy, and that he would not renew the lease or remain in possession of the leased premises for another year. Hendrix endeavored to release the premises to Slater for another year, but this was refused by the latter. Hendrix then sought to release the premises to Slater for six months after the expiration of his lease, but this was declined by Slater. The record contains no evidence that Hendrix expressly agreed that Slater might hold over on any terms whatever; nor does it show that he protested or objected to Slater holding over the time he did. Slater
Reversed and remanded.