McBrier v. Marshall
McBrier v. Marshall
Opinion of the Court
When the defendant held over after the expiration of his term, he entered upon a second term of five years. It is true he sets forth in his affidavit, that in September, 1886, he notified the plaintiffs of his intention of vacating the demised premises on January 1,1887. But he did not go. He admits that he continued in possession until January 1, 1888. In the absence of any new agreement, his remaining over would be the equivalent of a renewal of the lease for five years. He does not aver a new agreement to remain for one year only. That he remained with the permission of the plaintiffs was not to the purpose. They might have been entirely willing for him to do so, and to relieve him altogether provided he procured another acceptable tenant in his place. In the absence of any clear averment of a binding agreement by which the contract of March 12, 1881, was abrogated or modified, it was not error in the court below to enter judgment for want of a sufficient affidavit of defence.
Judgment affirmed.
No. 805.
Pee Cueiam :
Judgment affirmed.
Reference
- Full Case Name
- JAS. McBRIER v. F. F. MARSHALL, EXRS.
- Cited By
- 16 cases
- Status
- Published
- Syllabus
- (а) In an action of assumpsit for rent, the landlord averred that the tenant had elected, under a clause in the lease, to retain the demised premises for a second term of five years, and had paid the rent for the first year of said second term, but had refused to pay the rent, as it became due, for the second year. (б) The tenant in his affidavit of defence denied such election, and averred that at the end of the first term, as the landlord had failed to secure a new tenant, he had retained the premises for one year for his accommodation, and then surrendered them, and further that the landlord had broken his covenant to keep the premises in repair, the defendant “actually sustaining a loss thereby in excess of $2,000.” 1. In such case, in the absence of any clear averment of a binding agreement by which the original contract had been abrogated or modified, it was not error in the court below to enter judgment for want of a sufficient affidavit of defence; the allegation of a loss caused by plaintiff’s failure to repair was too vague to constitute a defence, even if such a set-off were admissible.