| N.C. | Nov 24, 1909
Action for damages for breach of contract, appealed to the Superior Court by plaintiff from a magistrate's judgment.
The facts are stated in the opinion of the Court. The premises were leased for one year, from 1 June, 1907, rent payable monthly. The lease contained this provision: "The parties of the first part bind themselves, upon the request of the party of the second part, in writing, to renew this lease, without change in terms, from year to year, for a period of four years." On 1 June, 1908, the defendant continued in possession of the store, without making such request, in writing or otherwise, paying rent monthly, as before. In January, 1908, erroneously conceiving that he was therefore renter from month to month, the defendant gave due notice, as such, and vacated the premises on 1 February. The lessor objected, (341) and brings this action to recover the rent from 1 February to 1 June, less the rent from 23 April to 1 June. If the plaintiff's testimony is true, that with reasonable diligence he could not rent the store till 23 April, he is entitled to recover rent from 1 February, 1909, to that date.
His Honor erred in holding this to be a tenancy at will. The requirement that the request for renewal should be in writing was in favor of plaintiff. If not given, he could have refused to renew. The defendant, by continuing on, was presumed to be in for a year, as before, on the same terms as to time, price and monthly payments, and with a right to three years more if requested in writing. A case exactly in point is Scheekley v.Koch,
Error.
Cited: Murrill v. Palmer,