RIGHT TO SHOW AGREEMENT TO HOLD OVER FROM YEAR TO YEAR.

Court of Appeals for Hamilton County.

#### John Haggerty v. Charles T. Maley.

Decided May 9, 1919.

*Landlord and Tenant*— Lease *Expires Without Privilege of Renewal being Exercised*— Competency *of Testimony as to an Oral Agreement for a Year to Year Tenancy*— Payment *of Taxes by Tenant Through Mistake.*

1. “A” was in possession oí real estate as lessee under a lease for five years containing a privilege of renewal upon the lessee’s giving ninety days’ notice prior to the expiration of the term, the additional term to he at an advanced rental. No notice of an intention to exercise the privilege was given. “A’.’ held over, paying the advanced rental for two and a half years and then vacated the property. *Held:*“A” may show an agreement for a year to year tenancy made after the expiration of the first year.

2. When the lease is for a term of years and the tenant stays beyond the term o'f the lease, he becomes, at the election of the landlord, a tenant from year to year where there has been no renewal provided for in the lease itself.

2. Where, upon abandonment, the landlord sues lessee, alleging that on the date of the new term, by virtue of an agreement between parties. the lease was extended a year, and that a like agreement was entered into for a second year, and then dismisses the suit, and “A” in a second suit offers the bill of particulars filed in the prior suit which was objected to and was excluded. *Held:*error.

.4. The lease, making no provision for the payment of taxes, the fact that while ignorant of his rights, the tenant reimbursed the landlord upon his demand for taxes paid on the leasehold premises, confers no legal right on landlord to recover taxes which tenant did not pay.

Vm. *F. Fox, for plaintiff in error.*

*Williams*& *Ragland, for defendant in error.*

Vickery, J.

This cause comes into this court on error to the common pleas court of Hamilton county, in which court Charles T. Maley was *506plaintiff and John Haggerty was the defendant. It seems that in the year 1908, on the 3)1 day of October, plaintiff in the court below made a lease of certain premises, situated in the city of Cincinnati, to Herbert L. Freeman for a term of five years, beginning the 1st day of November, 1908 and ending the 1st day of November, 1913, together with a privilege of renewal for a further period of five years under certain conditions set forth in the lease, and that on the 17th day of September, 1909 said Herbert L. Freeman, with the consent of the plaintiff below, assigned said lease to the defendant, John Haggerty, which assignment and consent were in writing, and that said assigment went on record on the 18th day of September, 1909, and is recorded in the records of leases of' Hamilton county. Thereafter, said Haggerty entered into possession of the premises paying as a rental per year the sum of $420 in installments of $35 per month, on the first day . of each and every month, and continued in possession and paid the rent as provided in the lease up until the 1st day of November, 1913.

The provision in the lease as to the renewal was in effect that when the lessee or his assignee should desire renewal, he was to make known his election ninety days prior to the end of the lease, and that under the renewal the rental should be at the rate of $50 per month, or $600 per year.

The lease contained a provision whereby the defendant could erect a building upon said premises, and certain provisons as to how to arrive at the value of the building, and for the fixing of the compensation or the payment for the building upon the termination of the lease. -

The defendant, Haggerty, did not notify the plaintiff of his desire for an extension or renewal of the lease ninety days prior to the ending of the lease, nor at any other time, but the record shows by the proffer of certain evidence that there was some conversation or communication between them which indicated a desire of Haggerty tp vacate the premises, and asked for an adjudgment of the rights between the plaintiff and defendant as to proper compensation for the building that Hlaggerty had erected on the property, but' nothing was done *507by the owner of the property, the plaintiff, in this respect. On the 1st day of November, 1913, Haggerty was in possession of the property, and, the agent of the plaintiff appeared with a bill made ont for the month’s rent at the rate of $50 per month, which, it is claimed, Haggerty refused to pay, saying that he did not want to stay for five years. But, upon a statement made by the collector, that he should see the plaintiff and arrange about that he paid the $50. From that time on, he paid at the rate of $50 per month for two years and a half and then vacated the property.

This action was brought to recover the rent at the rate of $50 per month for two and a half years, of the remainder of the full term of five years, if there had been a renewal of the lease for that period of time.

The second cause of action.is a claim for the taxes that the owner of the property had paid and which he sought to recover from the defendant, Haggerty.

Issues were joined on these causes of action, and a trial to a jury was had, but before the case was submitted to a jurjy it was agreed by both parties that a jury should be waived and the case tried to the court. Whereupon, the case was submitted to the court, which rendered a judgment for the plaintiff against the defendant on both causes of action, amounting to something over $1,800. This proceeding was brought by the said Haggerty to reverse that judgment.

The petition in error is predicted upon several alleged errors. Perhaps it will not be necessary to consider all of these.

One of the first errors claimed is that certain testimony was sought to be introduced by the defendant below, which tended to show that when the collector called on the 1st day of November, 1913, for the rent and he first declined to pay the rent saying that he did not want the property for a period of five years, but, upon being told by the agent that he would have to see the landlord, the plaintiff, about that, he thereupon paid the rent and then went to see the landlord. The admission of this evidence was refused by the court upon objection, to which an exception was taken.

*508We think this was clearly erroneous. The court apparently based his ruling upon the fact that inasmuch, as the tenant was holding over beyond his term and accordingly paid the rental provided for in the lease, if it had been renewed;, amounted to an irrebuttable presumption that the lease had been renewed.

We recognize from the authorities that where a lease provides'for a renewal under a different rental than that of the original term, and the tenant stays in and voluntarily pays the increased or different rental, without any explanation, or anything being said, it operates as a renewal for the new term. But, here, the profferred evidence tended to show that this was not the situation; that the rent was paid under a different and distinct understanding, and surely under such circumstances it would be error not to permit testimony, which would explain the payment.

We think the law is well settled in Ohio that ordinarily when a lease is for a term of years and the tenant stays beyond the term of the lease, he becomes a tenant from year to year, that is, where there has been no renewal provided for in the lease itself. This was decided in Ohio, in 57 O. S., page 161, where many of the authorities are collected and cited as a basis for the judgment in that case. We know that this is a different rule from that recognized in many other states, where the rule is that the staying beyond the term extends the leáse for a further term equal to .that provided for in the lease. But we do not understand that to be the rule in Ohio. In fact the •rule is the other way, and we, therefore, think the court erred in keeping this evidence out of the record. Of bourse, we do not know what governed the court in the final decision when it was submitted to him, but we do know that this evidence legally was not before him, and the party had the right to have that evidence properly before the court. Inasmuch as this evidence was proper, and the court ruled it out, we think error was committed.

We think it was error likewise for the court to refuse the ■ admission of the evidence contained in the bill of particulars, *509that was filed by the plaintiff below against the defendant below, in the municipal court of Cincinnati, wherein it was set up that on November 1st, 1913, by virtue of an agreement between the parties, the lease was extended for a year, and thence on the 1st day of November of the second year a like agreement was entered into between the parties. This tended to corroborate the theory of the plaintiff in error that the lease had not been renewed, but a new contract from year to year had been made, and it served as admission against interest, which, we understand, always to be admissible. Therefore, the court erred in ruling this out.

Coming now to the second cause of action on the question of taxes. We find nothing in the lease which compelled the tenant to pay the taxes, and there being no agreement for the tenant to pay the taxes, we do not understand upon what basis the right to recover from him could be predicted. The mere fact that the tenant may have paid some of the taxes without being aware of his rights, would not confer a legal right upon the plaintiff to recover the taxes which the tenant did not pay. We, therefore, think' the court erred in rendering judgment upon the second cause of action, and the judgment was erroneous in this respect.

For these errors, the case is reversed and remanded to the court of common pleas for a further proceeding according to law.

Dunlap, P. J. and Washburn, J., concur.