STATEMENT OF FACTS.
This is an action of unlawful detainer brought by appellees against appellants in the circuit court to recover the possession of a lot in Searcy, White County, Arkansas, together with a motion picture building situated thereon.
Appellees are the children and heirs at law of W. H. Lightle, and inherited the property from him. In June, 1917, appellants rented the property from W. H. Lightle for a term of five years at a monthly rental of $50. The term expired on the first day of June, 1922. W. H. Lightle had died in January, 1921. The motion picture building became out of repair, and appellants vacated the building on June 30, 1923. The old moving picture building was torn down by appellees, and subsequently *Page 1135 they erected a new motion picture building. Appellants moved into the new building, and have been using it for their motion picture business ever since. Thus far the facts are undisputed.
According to the evidence of appellees, appellants agreed to move into the new building and pay them a rental proportionate to the cost of erecting it. Appellants and appellees were unable to agree upon the rental price, and in the meantime appellants occupied the building at a rental of $150 per month from month to month. Afterwards appellees were offered $250 per month for the building, and informed appellants of that fact. Appellees told (appellants that they were giving them the preference of renting the building at that price. Appellants refused to consider renting at that price, and on December 12, 1927, appellees wrote appellants that they had rented the building to other parties for $250 per month, and demanded that they vacate the building by January 1, 1928. Appellees rented the building on November 29, 1927, at a rental of $250 per month, after a written demand upon appellants to sign a new lease on these terms, which was refused by appellants.
According to the evidence for appellants, they moved into the new building under such terms as amounted to a lease from year to year. When appellees gave them police to quit or vacate the premises on the first day of January, 1928, they refused to do so because they considered that appellees should give them six months' notice, as is required in a tenancy from year to year. The undisputed evidence shows that the notice to vacate was given appellants by appellees on the 12th day of December, 1927.
There was a verdict and judgment in favor of appellees, and the case is here on appeal. (after stating the facts). It is insisted by counsel for appellants that, under the evidence adduced in favor of appellees, appellants were renting *Page 1136 the property from month to month, and that, under the circumstances, they were entitled to thirty days' written notice to terminate the tenancy. Reece v. Leslie,105 Ark. 127, 150 S.W. 579. The undisputed evidence shows that appellants did not receive thirty days' written notice to terminate the tenancy, and that there was no agreement between the parties for a less notice. Hence they insist upon a reversal of the judgment.
The circuit court, however, proceeded upon the theory that, under the evidence, the jury might find that appellants had waived the thirty days' written notice which is necessary to the termination of a tenancy from month to month, in the absence of an agreement between the parties for a notice of different time. It is true, as insisted by counsel for appellants, that, in the case of a tenancy from year to year for a term of years, six months' notice is required. Peel v. Lane, 148 Ark. 79,229 S.W. 20, and Jonesboro Trust Co. v. Harbaugh,155 Ark. 416, 244 S.W. 455. Appellants insisted upon having six months in the present case. Hence the court correctly submitted to the jury the question whether or not they had not waived the thirty days' notice required in a tenancy from month to month by refusing to vacate the premises unless a six months' written notice was given, as is required in a tenancy from year to year.
In Wood v. Davenport, 156 Ark. 598, 247 S.W. 69, this court held that, where a tenant from month to month, on the sale of the premises asserted the right to hold for a year from the time of his contract, and refused to move until the expiration of that term, there was a disclaimer of the landlord's right to terminate the tenancy, and formal notice was not necessary. The court said:
"The notice of the termination of a lease may be waived by the tenant, and a disclaimer of the landlord's title or the right of the landlord to terminate the lease is sufficient to operate as such waiver. 1 Underhill on Landlord Tenant, 131." *Page 1137
In 1 Underhill on Landlord Tenant, 125, the author says that the refusal of a tenant to quit on the ground that he is a tenant from year to year waives any formal insufficiency of a notice to terminate a tenancy from month to month. In support of the text the case of Drey v. Doyle, 28 Mo. App. 249, is cited. In that case it was expressly held that the formal insufficiency of a notice to quit is waived by the tenant's repudiation of the monthly tenancy and his refusal to quit on the ground that he has a tenancy for years in the premises. The court there cited Boynton v. Bodwell, 113 Mass. 531, to support its holding. There the court had the converse of the proposition, and it was held that, while a notice given by a tenant at will to terminate his tenancy, which fails to estate the time when he will quit, is defective, yet, if the landlord does not object to the insufficiency of the notice, when the tenant in fact does deliver to him possession on a subsequent day, the jury are authorized to infer a waiver of the defect.
The same principle controls here. The undisputed evidence shows that appellees gave appellants the privilege of entering into a new lease at $250 per month, which they had been offered by another party, and that they gave appellants a reasonable time in which to consider the proposition and decide upon it. After mature deliberation, appellants decided not to accept a new lease on such terms, and appellees entered into a new lease with another party for $250 per month. They then gave appellants notice to quit the premises on the first day of January, 1928. It is true that the notice was given on December 12, 1927, and that the thirty days' notice required in a tenancy from month to month was not given to appellants, but appellants expressly declined to vacate the premises until they received six months' notice, as is required to terminate a tenancy from year to year. Hence the court was correct in submitting the question of waiver of the insufficiency of the notice to the jury, and the verdict of the jury against appellants is binding upon us upon appeal.
Therefore the judgment will be affirmed. *Page 1138