4 Colo. 77 | Colo. | 1878
Two questions arise for our determination : First, what was the character of the tenancy as to duration ; was it from month to month? Second, under the notice given, did the statute operate to change such character of the tenancy ?
I. The first question is to be determined by the terms of the contract, if there was a contract respecting the term at all; if not, then by implication, based upon whatever facts in the whole case exist from which a legal inference fixing the term may be deduced.
There was no written lease, and the evidence shows no express contract as to the length of term beyond the first month.
Whitsett testifies that “the younger Hurd said they had the property from month to month at $175 per month; I received rent from defendants up to August 1, 1875, at that rate; * * * I wanted the defendants to rent the property for a year, and they always said they wanted to rent it from month to month ; * * * they refused to lease the premises by the year ; * * * I accepted them as tenants on the same terms as they had of Moore; I read the notice to Hurd, and he got huffy and said they were to have the store as long as they wanted it.”
Moore deposes : * * * “D. Hurd & Sons’ lease was to commence in August, 1873; I made the lease through an agent; * * * John Clough & Co. were my agents;
Daniel Hurd testified : * * * “ Looked for a house to do business in,, and found the house in controversy ; saw the agent, John Clough, and got the refusal of it; we were to pay $175 per month ; I told him I wanted it for a large wholesale grocery business, and wanted a place where we could stay, as it would be ruinous to move, but would take it for no specified time ; * * * Moore brought Whitsett to my office and introduced him to myself and son; he said he had sold the property to Whitsett, and we were to pay rent to him; our understanding with Clough was referred to, and the same terms were to be continued; * * * Whitsett came in several times afterward, and wanted us to keep it on the same terms for a year ; we refused, and said we would get out as soon as we could * *
Charles R. Hurd testified: “ Paid the rent monthly in advance ; made the bargain with Clough; * * * he wanted us to take a lease, but no time was set; Clough was not to turn us out without notice, and we were not to quit without notice; * * * Moore said he had sold the property to Whitsett, who would be our landlord on the same terms we had before ; I don’t think any .thing was said about the particular terms on which we had held the property * *
Under the state of facts as disclosed by this testimony, we must hold the tenancy to have been a tenancy from month to month.
The general rule at common law is, that a tenancy for an indefinite time, or even for any aliquot part of a year, as
And the reservation of rent and its payment at stated periods, as for a year or month is, in the absence of express agreement as to length of the lease, one of the principal criterions to determine the duration of the term. Taylor’s L. & T., §§ 56, 57, 61; Blumenberg v. Myers, 32 Cal. 93; Skaggs v. Elkins, 45 id. 158 ; Coffee v. Lunt, 2 Pick. 76; Rich v. Bolton, 46 Vt. 84; 14 Am. Rep. 615.
In the case at bar, the defendants below, as they themselves testify, refused to accept a lease for a year, or to consider their tenancy as one from year to year. The rent was a fixed sum per month, and paid each month in advance. Our statutes recognize a monthly tenancy as distinct from one from year to year. R. S., p. 336, § 18.
Moore, the first lessor, in his testimony says: “They paid the rent monthly in advance. After the first term expired, I demanded a larger rent,” etc.
II. Was the notice within the meaning of the statute %
This question is not without some difficulty, inasmuch as it involves á legal construction of .the specific meaning of the terms of the statute under which the notice was framed and given.
The language of the section is as follows.:
“In all leases of lands or tenements or any interest therein, from month to month, the landlord may, and it shall be lawful for him, upon giving notice in writing to the tenant, at least fifteen days before the expiration of the month, to change the terms of the lease or agreement under which such tenant holds, to take effect at the expiration of the month: said notice, when served upon the tenant, shall of itself operate and be effectual to create and establish as a part of the lease or agreement the terms and conditions specified in said notice, if such tenant shall continue to hold the premises specified in the notice after the expiration of such month.”
The following is .the notice which was served by the plaintiff below upon the defendants:
“D. Hurd & Son : Take notice that after the month of April, A. D. 1875, you will be considered my tenants of the premises hereinafter mentioned, for the term of one year certain, at a monthly rent of $175, payable on the first
Richard Whitsett.
Denver, Col., March 2Qth, 1875.”
Since the purpose of the notice was to convert the tenancy . from month to month into a tenancy for a year certain, by operation of the statute above quoted, it will be seen that the plaintiff’s right to recover for rent claimed to have ' accrued after the defendants vacated the premises, and had paid up to the time of going out, depends upon the meaning that is to be attached to the word “terms ” in the section referred to.
First — The word “term” or “terms” in its general signification, denotes words, phrases and expressions by which the definite meaning of language is conveyed and determined.
Second — The word “ terms ’ ’ in the plural form, in its restricted and legal sense, and as used chiefly in reference to contracts, means the conditions,’limitations and propositions which comprise and govern the acts which the contracting parties agree expressly or impliedly to do or not to do. As employed in respect to leases, the word “terms” embraces the covenants and conditions which impose, confer and limit the respective obligations and rights of the landlord and tenant during the continuance of the tenancy; such as the extent and manner of the use of the premises; quiet enjoyment; rent and its amount, mode and time of payment; repairs ; payment of taxes, and the like express or implied agreements.
Third — The word “term” when used in respect to tenan
In all the text-books, terms and conditions are spoken of as annexed to the term. A term signifying an estate of a certain duration is the subject of the grant; the “terms and conditions,” are the incidents of a term granted, and the tenant, unless prohibited by the terms of his lease, may grant a portion of Ms term to another, and he may in such grant impose other and different terms and conditions from those incident to his own estate. These propositions serve to illustrate the difference in use and meaning of the words “term” and “terms” when used in respect to the subject before us.
Does, then, the notice provided for in the statute, contemplate a change of the term as well as of the conditions of the lease, or only the terms and conditions annexed to the term % .
In giving a judicial interpretation to these terms, we must hold to the technical signification of legal nomenclature, and whatever may have come, to be the popular meaning attached to their use, we cannot allow that they are to be interchanged and confounded in meaning when employed in the grant of estates or in relation to tenancies created thereby; nor can we think that the law-makers in framing the statute in question, employed these words in any other than the fixed technical meaning which has been attached by a use as old as the common law; nor can we think, therefore, that it was the legislative intent that by the service of such notice the statute would operate to change the character of the estate by an enlargement of the term or duration of the tenancy.
Let us examine (for a soeiis noscibur) some other portions
“If any person shall, with or without force, hold over any lands, tenements, mining claims, or other possessions after the termination of the time for which such lands * * * were let * * * or contrary to the conditions, covenants or terms of the lease * * * or after any rent shall become due according to the terms of such lease,” etc. It is evident that the word “terms ” is here used in its strict legal sense, and cannot be construed to embrace the duration or .term of the lease, for that is designated by the word “ time.”
Again, in the latter part of section seven, it is 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.” Not that it shall create a new lease, which would be the case if the term was changed, but create and establish the new terms and agreements specified in the notice as a part of the lease or agreement; that is to say, a part of the former lease or agreement.
And in this connection we may be pardoned for observing that in the use of the following language in the notice given to the defendants below, to wit: “Failing to assent to hold said premises according to the terms and time above specified, you will surrender,” etc. The coupling of the added word time with the statutory word terms seems to imply a doubt as to whether the word “ terms ” was broad enough to include the duration of the tenancy ; a doubt possibly suggested by the difficulty which the learned counsel who framed the notice found in trying to" divest his mind of the settled meaning of the words used in the statute, and a difficulty attempted to be overcome by making the notice broader than the statute.
And in searching to discover the intent of the law makers, it may not be improper to consider the circumstance that at the time of the adoption of this act, a condition of things
This statute was first enacted by the legislative assembly of Colorado' in 1864, and the seventh section is a transcript of the sixth section of the California act of 1863. Nevada borrowed the same law from California the same year we did, and so far as we have been able to discover, no other State has adopted a similar statute. We cannot find that the courts of Nevada or California have ever given judicial construction to this law upon a question precisely similar to the one before us.
In the case of Stoppelkamp v. Maugeot, 42 Cal. 316, there was a storehouse rented for a month certain, at twenty-five dollars for the month, and the landlord gave notice to the tenant that, in case he held over the month, the rent would be increased thereafter to $500 per month. Upon the tenant holding over and refusing to pay this increase of rent, suit
It seems clear that the court referred the word ££ terms ” to conditions, such as rent, and not to a change of the duration or term ; the latter being expressed by the word ££ time.”
If the legislature had intended a change of the term itself, nothing could be easier than to have so specified it by declaring in unmistakable language that the landlord might change the term and the conditions of the lease, or in other words of like import; but in the absence of legal terms that will import such a construction of the language, we are not at liberty to give it other than that strict construction which the rule relating to the judicial interpretation of statutes requires
In this view of the case we may agree with the learned counsel for the defendant in error, that this statute is little other than declaratory of the common law ; but in the case of Roberts v. Hayward, 14 Eng. C. L. R. 648, cited in support of the point contended for, it is to be remarked that there was no pretense of attempting to change, by the notice given to the tenant, any thing more than the rent, which, as in the California case, was a mere condition sought to be annexed to the term. We can find no authority in the numerous text-books on the subject of tenancies, nor in any adjudicated case, for holding that under either the common law or the statutes of any State, the landlord may enlarge or otherwise change the term of an estate, by a
When, under the general rule, a tenant for one ormore years, by holding over may be treated by the landlord as a tenant for another year on the same terms as the prior lease (Schuyler v. Smith, 51 N. Y. 309), if the prior lease be for more than one year, the term created by the holding over is certainly not the same as the prior one, although the terms, i. e., conditions, are.
We conclude, therefore, that these words “term” and “terms ” cannot legitimately be used synonymously ; that they are not generic in their relations to each other, but have each a technical and specifically distinct meaning as applied to estates in the nature of tenancies. True, the words are both derived from the latin terminus, a limit or
For these reasons we must conclude that the notice given by the plaintiff below to the defendants was not within the statute, and hence, the instruction given to the jury, by the court, that: “ If the jury believe, from the evidence, that the defendants, on the said 26th day of March, were tenants of the plaintiff of lot 28, block 20, East Denver, from month to month, holding the same at a monthly rental from month to month, and that they continued in possession and held said premises after the expiration of the month of. April, the legal effect of such notice was to change the terms of the lease by creating a yearly in place of a monthly tenancy,” was erroneous; and the judgment of the court below will be reversed accordingly.
Reversed.