Citations
- 94 Ill. App. 492
Full opinion text
Mr. Justice Freeman
delivered the opinion of the court.
Appellee was the occupant, under a written lease from appellant, of certain premises therein described, for a term commencing May 1,1897, and expiring April 30,1899. The rent was payable in monthly installments of $166.66 in advance, upon the first day of each month. The said lease contained the following clause:
“Eighth. At the termination of this lease, by lapse of time or otherwise, to yield up immediate possession to said party of the first part, and failing so to do, to pay as liquidated damages, for the whole time such possession is withheld, the sum of ten dollars per day; but the provisions of this clause shall not be held as a waiver by said first party of any right of re entry as hereinafter set forth; nor shall the receipt of said rent, or any part thereof, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to forfeit this lease and the term hereby granted for the period still unexpired, for any breach of any of the covenants herein.”
After the expiration of the term specified in the lease, appellee continued in possession, and vacated the premises July 2, 1899. The claim is now made in behalf of the said tenant, that, notwithstanding thus holding over, it became liable only for the penalty of $10 a day provided for in the above quoted eighth clause of the lease, and not for the full annual rental for the new year’s term.
The question for determination is whether appellee became liable for the rent of the premises for an additional year at the same rental, by holding over and paying the stipulated monthly rent for the first month of the new term. The case was submitted to the court, and it' was held that appellee was not liable for another year’s rent, but only for the penalty of $10 a day for the time it retained possession. From the judgment thus rendered this appeal is taken.
The general rule is stated in Taylor’s Landlord and Tenant, 7th Ed., See. 22, as follows : “A tenant for years who holds over after the expiration of the term becomes either a trespasser or a tenant at the option of the landlord. The tenant has no election; his mere continuance in possession fixes him as a tenant for another year if the landlord thinks proper to insist upon it. And the right of the landlord to continue the tenancy will not be affected by the fact that the tenant refused to renew the lease and gave notice that he had hired other premises.” This quotation is cited in the opinion by Hr. Justice Sheldon in Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151, and it is there said: “The doctrine of implied tenancies from year to year upon a holding over, is distinctly recognized in this State.” And it is further said (p. 165) that “ The legal presumption from the holding over a renewal of the tenancy can not be rebutted * * * by proof of a contrary intention on the part of the tenant alone.”
In the present case it is conceded by appellee’s attorneys that “ in the absence of any provision in the lease fixing a penalty' for the holding over, and in the absence of any agreement between the parties, the lessor would have the election either to treat the lessee as a trespasser and collect. double rent under the statute for the time the premises were wrongfully held, or to consider such lessee a tenant for another year upon the same terms ” as before.
It is claimed by appellee that there was in the case at bar an agreement between the parties that “it was not the intention or desire of the appellee to remain in the premises longer than a limited time after the expiration of the lease.” Appellee therefore sought to ascertain the terms upon which it might remain in possession until convenient to remove to new quarters, and it is claimed that appellant agreed that it might so remain upon payment of the penalty of $10 per day as provided in the said eighth clause of the lease. It is urged that there is evidence tending to show that appellant’s treasurer and agent did so state over the telephone in answer to a query as to the terms upon which appellee might temporarily hold over. On the other hand it is denied that what was said is properly open to £uch interpretation. However that may be, appellee’s president thereupon wrote to appellant’s said treasurer, as the letter states, “to see if you will not let us stay for one month or two months at the rental we are now paying.” It is evident that this was not an acceptance of the alleged proposition, if any such there was, to allow appellee to remain over at the rate of $10 a day. It was not in so many words an explicit rejection, it is true; but the letter did not in any way indicate what appellee would do if it could not get better terms than the penalty fixed in the lease. It did not even indicate that appellee would remain over at all if it had to pay the prescribed penalty according to the eighth clause of the lease. It does not appear that appellee ever did agree to remain over or indicated any intention so t