The plaintiff's action was to recover rent alleged to be due upon the lease of certain premises for the month of May, 1895, and the six following months of that year. The lease was executed in March, 1894, and was to terminate in one year from the first of May following. The defendants, who were the tenants under the lease, vacated the premises on May 15th, 1895, but as it was claimed that they held over after the expiration of the lease for fifteen days, it was held that they were liable for the rent for another year, and the plaintiff recovered for the seven months of the year that had elapsed before the commencement of the action. The rent, by the terms of the lease, was payable monthly, and the court directed a verdict for the plaintiff for $558.63, being the stipulated rent for the seven months, with interest.
The complaint alleged the making of the lease, the possession thereunder by the defendants, and that they had continued in possession until the time of the commencement of the action. The defendants, in their answer, allege that they surrendered possession of the premises to the plaintiff on May 15th, 1895, and that he accepted such surrender; that they had notified him in the month of February preceding that they would not take or keep the house for another year after May 1st, 1895, when the term fixed by the lease expired; *Page 31 that after this notice the plaintiff was permitted to show the premises to persons wishing to hire or purchase them, and to place upon the house the usual notice that it was to let; that the defendants moved from the house with all their property and belongings, and that of the family, on the first day of May, 1895, before the lease expired, except from the bedroom where their mother was confined by a dangerous illness until the fifteenth of May following, when she was removed and the premises wholly vacated, and that they were forbidden by the physician in charge from moving or disturbing the mother during the fifteen days, and were informed by him that it would imperil her life if an attempt was made to remove her. These affirmative allegations in the answer were pleaded together as a single defense. On the trial it was conceded that the defendants had the affirmative of the issues, since the written lease was produced and admitted by the pleadings and the possession under it.
It appears from the record that the defendants' counsel then proceeded to open the case to the jury, and at the close of the opening the court suggested that the controversy would resolve itself into a pure question of law, and that the facts should be agreed upon. The plaintiff's counsel then admitted that the notice from the tenants of their intention to surrender up the premises on the first of May had been given in February, as alleged in the answer. The defendants' counsel then stated that the reason for holding over after the expiration of the lease was the sickness of the defendants' mother, she then being a member of their family, and he stated that unless he could have it admitted as it is pleaded that he wanted no admission whatever. The plaintiff's counsel then admitted that fact, as set forth in the answer. The last clause of the answer contained an allegation that the holding over was with the knowledge and permission of the plaintiff, the landlord, and at the suggestion of the plaintiff's counsel this allegation was withdrawn. The case then states that upon the record and the defendants' counsel's opening, the court, at the request of the plaintiff's counsel, directed a verdict against the defendants *Page 32 for $558.63, and that the defendants excepted to this direction.
It is somewhat difficult to ascertain from the record just what questions were passed upon by the court at the trial. It is clear enough that he held that the defendants were liable for another year's rent from the first of May, 1895, notwithstanding the facts alleged in the answer with respect to the illness of the defendants' mother, and the impossibility of her removal without endangering her life.
The learned court must also have held that the other allegations of the answer pleaded in connection with the fact just referred to, that, upon the removal of the mother on the 15th day of May, 1895, the defendants surrendered the premises to the plaintiff, and that the latter accepted such surrender, was not available as a defense. In view of the fact that the defendants were requested to withdraw a particular clause in the answer, which was complied with, and of the further fact that the case states that a verdict was directed upon the record and the opening of the defendants' counsel, it must, I think, be assumed that the decision was that the answer contained no defense after the allegation had been withdrawn, which stated that the holding over was with the consent of the landlord. After the defendants' counsel had withdrawn this allegation he stated that he desired to have the other facts admitted just as he had pleaded them and this request was complied with. The admission, therefore, must be held to cover all the facts affirmatively pleaded in the answer, except the particular allegation which had been withdrawn. After verdict was directed against the defendants it would not be a fair construction of what took place at the trial to hold that the admission applied only to the single fact of holding over on account of the sickness of the mother. It must, I think, be held that it was an admission of all the facts affirmatively pleaded, except the single allegation which the plaintiff's counsel requested to be withdrawn. The direction having been made upon the opening of the plaintiff's counsel, which does not appear in the case, and upon the record, the fair construction is that a verdict *Page 33 was directed upon the answer, after modification by the withdrawal of the allegation referred to and upon the opening of counsel. The record in this connection must mean the pleadings in the case. (Kley v. Healy, 127 N.Y. 555.)
It was, therefore, admitted by the plaintiff's counsel that fifteen days after the expiration of the term provided by the lease the tenants surrendered the premises to the landlord and that the latter accepted the surrender. After the surrender there could be no recovery of rent, since the landlord could not have the use of the premises and the stipulated rent at the same time. When a landlord accepts a surrender of the premises, this act operates to discharge the tenant from all liability for rent in the future, and if the construction of the proceedings at the trial suggested be the correct one, then the direction of a verdict against the defendants was error.
But, perhaps, the most important question in the case arises upon the facts and circumstances which it is claimed constitute a holding over by the tenant after the expiration of the term specified in the lease. For every purpose necessary to the determination of that question we must assume that the facts are as alleged in the answer, since it must have been upon that assumption that the verdict was directed. There can be no doubt that the rule of law is settled beyond debate or controversy which permits the landlord, at his election, to treat the tenant as holding for another year when the latter remains in possession after the expiration of the term. When the demise is for a definite term of one year at a fixed rent and the tenant holds over after that term expires, the landlord may treat him as a tenant for another year and collect rent accordingly. (Haynes v. Aldrich, 133 N.Y. 287; Adams v. Cohoes, 127 id. 182.) But the question is whether the tenant did in fact hold over after the expiration of the term, within the meaning of that rule. If it is an arbitrary one, applicable under all circumstances and conditions and to be enforced in every case without regard to the reason upon *Page 34 which it is founded, it may be said that in a strict sense there was a holding over in this case. But this rule that obtains in the relation of landlord and tenant is a part of the common law, the chief merit of which is supposed to consist in its adaptability to changing circumstances and new conditions as developed in the progress of time. It is not an unchangeable code, like that of the Medes and Persians, but a system that has grown up with the growth of civilization, and is capable of being moulded to meet the wants of society in every stage of its progress. From the facts disclosed by the answer in this case the tenant vacated the house at the expiration of the term, except one bedroom in which a member of his family was confined by illness so serious that he was warned by the physician that any attempt to remove her would imperil her life. The decision of the learned trial court in the case virtually holds that on the last day of the tenant's term he was placed in a position where he must either pay rent for another year for a house that he did not intend to occupy, or to take the risk of becoming, in a certain sense, responsible for the death of his mother by attempting to remove her from a sick room against the protest of a physician. This would seem to be pushing a rule of law applicable to the relation of landlord and tenant to a point which makes it very unreasonable, if not absurd, and before assenting to such an application of it, we are naturally forced to inquire whether there was in fact any such holding over by the tenant in this case as the rule fairly contemplates. Does a tenant who, on the last day of the term is upon his death bed, or is quarantined in his house by the public authorities to prevent the spread of some dangerous or infectious disease, or is insane or compelled to remain in the house against his will by some superior force or stress of circumstances, hold over within the meaning of the law, or in the sense that permits the landlord to treat him as a tenant for another year? The principle upon which the rule is founded is that the holding over is such an act of the tenant that the law implies a contract on his part, or leasing of the premises for another year. But whenever the law *Page 35 implies a contract from the act or conduct of the party, the act itself, whatever it may be, must be voluntary. The law does not imply a contract or obligation from an act of the party which proceeds from mistake or fraud, or which results from force or coercion of any kind, or is due to any stress of circumstances which involves peril to his life or that of some member of his family. To infer a promise or contract from any act plainly resulting from such causes would manifestly be contrary to reason and justice. The question, therefore, occurs whether the tenant in this case, by failing to remove his mother from the bedroom in the house, or by her presence there during the fifteen days after the expiration of the term, should be held for another year's rent, on the principle that an agreement to hold for another year is to be implied by law from his conduct under the circumstances. If this question must necessarily be answered in the affirmative, there would be no grounds for any further discussion. But it seems to me that, upon reason and all the analogies of the law, a hiring for another year cannot and should not be implied against the tenant under such circumstances. The case is not within the reason of the rule, and, therefore, is not governed by it. While this court has firmly adhered to the principle that the landlord is entitled to treat the tenant who holds over as lessee for another year, it is plain, from what was said in one of the most recent cases, that the rule was not considered an arbitrary one. On the contrary, it is intimated that it was not so rigid that it could not properly be made to bend in exceptional and peculiar cases. (Haynes v. Aldrich, supra.) Where the holding over is wrongful or voluntary, and not unavoidable in the strictest sense, the rule must be permitted to have full application. But where the tenant, as in this case, is obliged to retain a room in the house for a short period of time in order to avoid the peril of exposing a member of his family to danger and death, it cannot properly be said that it is a holding over within the meaning of the law. Where a party acts under such a stress of circumstances the act cannot be said to proceed from his own volition any more than if he *Page 36 had been detained in the house by the police under the direction of the health authorities.
In Haynes v. Aldrich (supra) this court enforced the rule in a case where the facts were quite different from those appearing in the record now before us. In that case, however, the learned judge who spoke for the court evidently had in mind some case which might be considered an exception to the rule. That is the plain inference from the following paragraph of the opinion: "I do not mean to say that whether there has been a holding over at all may not some times be so doubtful upon the facts as to require a submission to the jury. I mean to say that there is no such doubt in the present case. I reserve the question, also, whether there might not be an unavoidable delay, in no manner the fault of the tenant, directly or indirectly, which would serve as a valid excuse. It is enough that here was a holding over not unavoidable, which might have been provided against, and where the chief difficulty grew directly out of the tenant's own wrongful act." In Jones v. Shears (4 Adol. El. 832) the defendants had rented a coal mine for twenty-one years with the proviso that they might terminate the tenancy at any time by giving a previous notice to that effect. The term commenced in April, 1825, and four years thereafter the defendants gave the notice provided for. They, however, continued in possession for two months after the expiration of the time limited by the notice, working the mine. The landlord brought an action for the rent, claiming that the holding over gave him the right to treat them as tenants at the former rent. The defendants claimed that this holding over was not with any intent to waive the notice and renew the tenancy, and that they had the right to show the circumstances under which they so held over. Upon this question of intent they, therefore, proposed to show that the coal worked by them during those two months was taken from pillars of coal which supported the roof of the mine, and that it was customary for the tenant on leaving the mine to cut away as much coal as could with safety be removed. This evidence was allowed, and COLERIDGE, J., left *Page 37 it to the jury to say whether under the circumstances the defendants held over with the intent to waive the notice and continue the tenancy or not. The jury found a verdict for the defendants, and a subsequent motion for a new trial was denied. Upon appeal to the King's Bench the ruling at the trial was affirmed, Lord DENMAN, Chief Justice, saying: "It was impossible upon this issue not to leave the question to the jury, and it was for them to decide whether the parties, by their mode of continuing in possession, showed an intention to waive their notice to quit and to remain tenants as before." LITTLEDALE, J., also said: "I do not know that where a tenant holds over he is always to be considered as bound to hold upon the same terms as far as they are applicable. * * * Here, however, the question was not whether the parties held over on the terms of the original tenancy, but whether they held over as tenants at all. It was for the jury to say whether the defendants intended to avail themselves of their notice to quit, or whether the acts done by them amounted to a waiver of such notice." In Chitty on Contracts (pp. 286, 287, 8th Am. ed.), after discussing the effect of the receipt by the landlord of rent after the expiration of the term, and a holding over by the tenant, the learned author adds: "And both the fact of holding over and the payment of rent may be explained so as to rebut the presumption that the parties intended thereby to create a tenancy from year to year." The law in many cases excuses a party from the performance of a contract or some other act when disabled by sickness. Such was the decision of this court in a case where a party had contracted to render personal services for a specified time, but after a partial performance was disabled by sickness. It was held that notwithstanding the nonperformance, by reason of this disability, the person rendering the services was entitled to recover upon aquantum meruit. (Wolfe v. Howes, 20 N.Y. 197.) The disability of a party to do the particular thing, or to perform the contract by reason of sickness is held to be a disability by the act of God. So it has been held that sureties upon a recognizance to secure the *Page 38 attendance of the principal at court to answer to a criminal charge may, when sued upon the recognizance, defend upon the ground that the principal was disabled from attending by reason of sickness. (People v. Tubbs, 37 N.Y. 586.) The general rule is that where the performance of a duty or charge created by law is prevented by unavoidable accident without the fault of the party, he will be excused. (Dexter v. Norton, 47 N.Y. 62;Mill Dam Foundery v. Hovey, 21 Pick. 441.)
It is important to note with more distinctness the wide difference between this case and Haynes v. Aldrich (supra). In that case the tenant violated one of the covenants of the lease by sub-letting the premises. The sub-tenant held over after the expiration of the term and the tenant was sued for rent upon the principle that the holding over created a tenancy for another year. The tenant sought to excuse the holding over by the allegation that a distant relative of the sub-tenant, who was in possession, was detained in the house after the expiration of the term by sickness. This court held that inasmuch as the sub-letting was in violation of the lease and was a wrongful act on the part of the tenant, that he could not be excused by a situation which was plainly the result of his own violation of a covenant of the lease. It is plain that the situation which it was claimed excused the tenant, was of his own creation by putting another party in possession of the premises. The holding over in that case was very properly attributed to the wrongful act of the tenant in putting a stranger into possession of the demised premises.
When a tenant for a year actually holds over after the expiration of the term, the legal consequences which follow are well settled and understood. The landlord may, at his election, treat him either as a trespasser or a tenant for another year, but in any case the fact of holding over must be established. The landlord cannot treat him as a tenant and collect the rent for another year, unless the facts are such as to justify him in proceeding against him as a trespasser. An act which might ordinarily constitute a trespass, when done or committed *Page 39 intentionally or voluntarily, cannot always be such when done or committed involuntarily. (Moak's Underhill on Torts, pp. 10, 15.) The mere fact that the tenant or some member of his family is obliged to remain in a room in the house after the expiration of the demised term may not necessarily amount to a trespass. Whether it does or not must depend upon circumstances. If he is detained there by the act of God or of some superior legal power, or some unavoidable necessity, he is not ordinarily deemed to be a trespasser. A trespass presupposes some wrongful act towards the person or property of another. If the tenant in this case actually held over, the plaintiff could maintain ejectment against him; but since his intention to remove on the day the lease expired is clear, and this purpose was defeated only by the dangerous illness of a member of his family, it would, I think, be difficult to say that he had such a possession of the house as would support an action of ejectment, and the same facts and circumstances that would protect him from such an action would also defeat the present claim, which is based upon the theory of an implied agreement to lease for another year. I do not mean to say that the facts stated in the answer would be a defense to an action by the landlord for damages based upon the breach of the covenant in the lease to surrender the demised premises at the expiration of the term. A duty or obligation imposed by law and one created by contract or covenant stand upon different grounds when the party seeks to be excused by the act of God or unavoidable accident, or stress of circumstances. But in this case the right of the landlord to collect rent for the second year does not depend upon any express contract or covenant. It rests wholly upon the legal implication derived from the wrongful act of the tenant in holding over, and if that act was not in fact wrongful, but, under the circumstances, excusable, then there is no basis for any implied promise or agreement. I assume that if the tenant or some member of his family should die on the last day of the term, that no one would then contend that the continued occupation of the house for a few *Page 40 days during the funeral would amount to a wrongful holding over within the meaning of the law. Such an interpretation of a principle of the common law would shock not only our sense of justice, but every feeling of decency and humanity. The case before us differs from that only in degree. Both cases must be governed by a common principle. It is obvious that in the application of the rule now under consideration to the relation of landlord and tenant there must be a point beyond which we cannot go, and that point is reached when the alleged holding over cannot be attributed directly or indirectly to some fault on the part of the tenant. There may be cases in which the occupation of a room in a house after the lease has terminated will not amount to a trespass or warrant the implication of a lease for another year. Since a party cannot, as a general rule, commit a trespass or make a contract without some effort of volition on his part, an act due to unavoidable accident or resulting from some overruling necessity or stress of circumstances can from no basis for imputing a wrong or inferring a contract. It is reasonable, therefore, to conclude from the facts and circumstances stated in the answer that the defendant was not a trespasser during the fifteen days that his mother occupied the room in the house and could not be removed without endangering her life, nor a tenant for another year. It follows, therefore, that the plaintiff was not entitled to recover rent from the time when the house was completely vacated.
It may be said that this conclusion is a departure from precedent, but it is not easy to see how it is. No case has been cited and none has been found where it was held that such a state of facts, or such a situation as is disclosed by the answer, amounted to a holding over by the tenant within the meaning of the rule that is invoked by the landlord to sustain this action. Legal rules may sometimes be pushed to a point where they accomplish the grossest injustice, and it then becomes the duty of the courts to limit their application to cases that are within their true scope and fair meaning. We go no further than to say that, upon the facts stated in the *Page 41 answer, if conceded or established, there was no holding over by the tenant within any fair or reasonable meaning of the rule which permits the landlord to continue the lease for another year.
The judgment should be reversed and a new trial granted, with costs to abide the event.