The property sued for is a storehouse in the city of Gadsden, one side of which had been rented to and occupied by a shoe shop, and the other side to the defendant Blum, who occupied it until February 1, 1917, when he subleased it to the defendant Solomon. Blum's original lease ran from February 1, 1916, to February 1, 1917, and was extended to February 1, 1918.
The issues presented on the trial were: (1) Whether defendants were in possession of both halves of the storehouse at the time of suit, including the half disclaimed. (2) Whether, upon the admitted holding over by defendants after the termination of the lease on February 1, 1918, plaintiff elected to treat them as tenants or as trespassers. (3) The amount of damages recoverable as rental value during the year of occupation after the termination of the lease. *Page 425
It is clear from the testimony in the record that defendants were not claiming or holding possession of that half of the premises as to which they disclaimed. Instead of taking judgment for the part disclaimed, without damages or costs, as he might have done (Torrey v. Forbes, 94 Ala. 135, 139,10 So. 320), plaintiff took issue on the disclaimer. On the issue thus made, the jury were erroneously instructed as to the right of plaintiff to recover the entire property sued for, with its rental value as damages. Presumptively, under the instructions given — and duly excepted to — the jury assessed damages which included the rental value of the entire storehouse, instead of the half actually occupied and held. For this error the judgment must be reversed, and the cause remanded for another trial.
It is not necessary to discuss the numerous other assignments of error in detail. The important questions thereby presented relate to the status of a hold-over tenant as determined, in the absence of express agreement, by the conduct of the landlord with respect thereto.
In Wolffe v. Wolff Bro., 69 Ala. 549, 553, (44 Am. Rep. 526), the rule is thus stated:
"The principle is too well established for further controversy, that, where a tenant for years holds over after the expiration of his term, the law will imply an agreement to hold, or continue the lease, for another year, upon the terms and conditions of the prior lease. It is the duty of a tenant, so soon as the period of his tenancy expires to peaceably surrender the possession of the demised premises to his landlord, and if he neglects or refuses to do so, the landlord may treat him either as a trespasser, or as a tenant, according as his own option may dictate."
In such a case the election of the tenant's status lies with the landlord, and not with the tenant. A. G. Rhodes Fur. Co. v. Weeden, 108 Ala. 252, 257, 19 So. 318.
When the fact of election vel non rests upon an inference from equivocal conduct on the landlord's part, it is of course a question for the jury, and a binding election is not to be intended unless the elector had knowledge of the material facts.
The evidence of defendants tends to show that they sent to plaintiff a check for the regular monthly rent on February 1, 1918, upon the termination of the pre-existing lease, the rent tendered being in advance for February, and that the check was returned to Blum through the mail on February 20th, without comment, and prior to February 1st no notice had been given them by plaintiff to vacate the building, nor that he expected them to deliver possession. If the jury believed this evidence it was open for them to infer that plaintiff had assented to defendants' hold-over, and thereby elected to treat the lease as continuing. But the mere fact of plaintiff's retention of the check for 20 days did not fasten upon him an election as a matter of law. He was of course under no duty to demand possession upon the termination of the lease. On the contrary, it was defendants' duty to deliver possession, with or without a demand from plaintiff. The lease was terminated by its own terms, and that result required no affirmative action by plaintiff.
But, if the jury believed the testimony of plaintiff, viz. that he called upon Solomon to deliver possession to him upon the termination of the lease, on February 1st, or thereabouts, the mere fact that plaintiff retained the check in his possession for 20 days would not support the finding of an election by him to renew the lease to defendants.
In ejectment, damages for the unlawful detention are but an incident of the recovery, and the only conceivable effect of a tender thereof before suit would be to reduce the amount of damages recoverable. Such a tender is not a defense to the suit, if the detention was unlawful. On the other hand, if the detention was not unlawful, there can be no recovery either of the possession or of damages.
As for the burden of proof that rested on plaintiff to make out his case, it was not necessary for him to show title and right of possession by deed.
So far as these defendants are concerned, they are conclusively estopped by their possession under the lease from plaintiff to deny his title and right to possession upon its termination. Robinson v. Holt, 90 Ala. 115, 116, 7 So. 441.
Let the judgment be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ. concur.
On Rehearing.