93 Vt. 76 | Vt. | 1919
For several years the defendant occupied a small farm in Springfield, Vt., as the plaintiff’s tenant. No formal lease was ever executed, but the arrangement was made by correspondence. About the time the term was to expire, November 15th, the defendant would write the plaintiff inquiring if he could have the farm for another term, and the plaintiff would reply concluding an arrangement for another year. Thus it ran along until the fall of 1917.
When the defendant wrote about a lease for the year following that date, the plaintiff replied that she would not promise him the place for another year, as she was undecided as to what she had better do with it. This was in the month of October. Some further correspondence was had regarding the matter, but the plaintiff refused to lease the place for another year, and no
The lease having been renewed from time to time as stated above, the tenancy, prior to November 15, 1917, was one for years and not one from year to year. Jones, L. & T. § 212. After that date, the tenancy was at will, and not from year to year; for the defendant was then holding over pending negotiations for a new lease; and the rule is that, when a lease expires, and the tenant is permitted to continue in possession pending a treaty for another lease, he is a tenant at will and so strictly so that he may be turned out without notice to quit. Doe v. Stennett, 2 Esp. 717; Grant v. White, 42 Mo. 285; Dubuque v. Miller, 11 Ia. 583; Jones, L. & T. § 212; Taylor, L. & T. 49.
Nor was the tenancy changed into one from year to year by the payment and acceptance of the rent mentioned. Under the
The defendant was not entitled to a technical notice to quit. Nevertheless he was a tenant, and even after April 15, 1918, he was a tenant, and not a trespasser. He was only a tenant at will, to be sure, but, before his landlord could make his possession wrongful, she must do something to determine the will and terminate the tenancy. This could be done in various ways, by demand of possession, notice to quit, threat of legal proceedings, or by any other act or declaration inconsistent with the continued voluntary relation of landlord and tenant. Chamberlin v. Donahue, 45 Vt. 50; Amsden v. Blaisdell, 60 Vt. 386, 15 Atl. 332. The letter of February 13 was doubtless sufficient for this purpose.
The defendant insists, however, that the plaintiff waived her notice by accepting rent for use of the premises after the notice had expired. That she did accept such rent is undeniable; for, as we have seen, the notice expired March 15th, and she accepted the rent as such up to April- 15th.
A waiver is defined to be the intentional relinquishment of a known right. Webster v. State Mut. Fire Ins. Co., 81 Vt. 75, 69 Atl. 319. Intent lies at the very basis of the doctrine. So a question of intention is always involved, and is usually a question of fact. Here it is expressly found that the plaintiff did not intend to waive her notice, and, if the question involved here is a question of fact, this finding is conclusive against the defendant’s claim. But if the question is here one of law, this finding goes for nothing. The question of intent is not always a question of fact. There are many cases wherein the intent of the party acting is conclusively inferred from what’ he does. Our own cases afford various instances of the application of this rule. The selection of one of two inconsistent remedies is a conclusive waiver of the other. Priest v. Foster, 69 Vt. 417, 38 Atl. 78. Proceeding with his defence is a final waiver of a defendant’s exception to the overruling of his motion for a verdict made at the close of the plaintiff’s case. Noyes v. Parker, 64 Vt. 379, 24 Atl. 12. By not claiming his privilege, a witness waives it. In re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790, 11
So, too, it is very generally held that the acceptance of rent accruing after a known forfeiture is a- waiver of it. Zatolis v. Cannellos, 138 Minn. 179, 164 N. W. 807, note to L. R. A. 1918A, 1066; Kenny v. Lun, 11 L. R. A. (N. S.) 831; Gomber v. Hackett, 6 Wis. 323, 70 Am. Dec. 467; Doe v. Pritchard, 27 E. C. L. 322; Dermott v. Wallach, 1 Wall. 61, 17 L. ed. 680; Jones, L. & T. § 497; Maidstone v. Stevens, 7 Vt. 487.
In these eases and others of the same class the conduct evidencing an intent to waive is so convincing and so inconsistent with a purpose to insist upon the right involved that the law refuses to listen when the party would assert any other intention. It is of such a decisive character that no other reasonable inference can be drawn from it. Fraser v. Ætna Life Ins. Co., 114 Wis. 510, 90 N. W. 476.
While some of the courts hold that the receipt of rent accruing after the expiration of a notice to quit is merely evidence of an intent to waive the notice, the more logical rule is that the unqualified acceptance of such rent, eo no'mine, is a waiver of the notice as matter of law. 1 McAdam, L. & T. § 183; 2 Taylor, L. & T. § 485; 1 Washburne 530; Collins v. Canty, 60 Mass. (6 Cush.) 415; Prindel v. Anderson, 19 Wend. (N. Y.) 391; Goodright v. Cordwait, 6 T. R. 219; Stedman v. McIntosh, 27 N. C. 571; Lehman v. Chicago, 203 Ill. App. 414; Zonch v. Willingale, 1 H. Bl. 311. And this is the law of Murphy v. Little, 69 Vt. 261, 37 Atl. 968. It is true that it is therein said that the ac
When this plaintiff unqualifiedly accepted the monthly payment as rent of the place from March 15th to April 15th, she unequivocally recognized the tenancy as existing on the latter date. She thereby waived her notice, and cannot now be heard to say that the tenancy ended on March 15th. Nothing happened between April 15th and the date on which this suit was brought to change the relation of the parties, or to affect the character of the occupancy. Being a tenant, though at will only, the defendant was entitled to a reasonable time after the termination of the tenancy in which to procure other accommodations and remove his property. Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Amsden v. Blaisdell, supra.
Judgment reversed and cause remanded.