11 Iowa 583 | Iowa | 1861
Tbe Central Market in tbe City of Dubuque was owned by the corporation. Stall number 19 in that market was occupied by defendant, to recover which this action was brought. Judgment being against defendant, upon an agreed statement of facts, he appeals.
I. Defendant relies upon his right as a tenant, the sufficiency of which as a defense to the action under the circumstances disclosed, is contested by the city. It seems that on the first of May, 1859, defendant leased this stall from the city for one year, for the rent of fifty dollars, and entered into the possession of the same, which he continued to hold until the commencement of this action. In April, 1858, the city passed an ordinance providing for the sale of the right to occupy stalls in the market, on the first day of May in each year, at public outcry, for cash or oily issue. After this sale a written lease was to be made out to the several
The tenancy of the defendant was at will, and not from year to year, after the first of May 1860. Until he complied with the ordinance, by paying the amount bid, he had no right to the possession, and was in no sense in the condition of a tenant holding over with the consent of his landlord. The sale of the stall to him on the 7th of May, 1860, without a payment of the rent, gave him no more right than if he had made no bid. The prior possession could not avail him, for by the express terms of, his lease, his right thereunder expired on the 1st of May, 1860. To hold that this was a tenancy from year to year, upon any hypothesis urged by appellant, we should at least have to first find that the tenant held over by the consent, either expressed or implied, of the landlord, thus affording evidence of a new contract. Now it is true that if the tenant, with the consent of his landlord, continues in possession after the expiration of a term of years, the law implies, in the absence of an express agreement, that the premises are held on the former terms, it being supposed that the previous agreement has been re
Being a tenancy at will, therefore it was terminated at the expiration of thirty days from the notice of the 14th of July, 1860. • Laws of 1858, chapter 49.
II. The ordinance of April 1858, providing for the payment of rent in city issue or cash, was amended in April, 1860, by requiring the payment in cash. At the sale an announcement to this effect was made by the city marshal, before the defendant made his bid. Whatever legal right the defendant might have had to pay his rent in city scrip and demand a deed, if there had been no order for its payment in cash, or if the ordinance had been silent in this respect, we think that under the circumstances disclosed, it was his duty to pay in money and that his tender of the scrip was not sufficient. He, by his bid, in effect undertook and agreed to comply with this order and to pay in this way, and it was no compliance with his contract to offer to pay in the city indebtedness. That it was competent for the city to make this order applicable to future contracts, we entertain no doubt.'
III. It is urged that by the charter of the city of Dubuque,
Affirmed.