A preliminary objection was made by the counsel for defendant in error, that the special finding of facts by the Circuit Judge constitutes no part of the record; and in support of this objection we are referred to sections 3436 and 3437 Comp. Laws, and the act of 1863. Session laws, p. 188.
It is true, by ’these statutes the Circuit Judge is not compelled to specify the facts found and his conclusions of law thereon, unless requested by one of the parties.
But in all cases where the cause is tried before the Court without a jury, the decision of the Court is required to be in writing, and filed with the clerk. If he makes this decision without specifying the facts found, his decision upon such facts involves a general finding in the nature of a *296general verdict. A special finding of facts under this statute comes in the place of a special verdict and serves all its purposes. And we are inclined to think it not only competent but highly proper and much fairer to the parties, for the Court in any case, when time and opportunity will permit, in making the written decision required by section 3436 to specify the facts found and his conclusions of law thereon ; and that when he does so, it will have the same effect as if he had been specially requested so to do under section 3437.
The only reason lor not peremptorily requiring the special finding in all cases, would seem to have been to save the judge the labor of making it special, unless requested by one of the parties.
But if this were not so and the request was necessary to authorize the special finding, his decision made and filed in the cause and containing this special finding, must, we think, in the absence of any showing to the contrary, require us to presume the request. See Sallee v. Ireland, 9 Mich. 154.
The finding of facts must therefore be taken as a part of the record.
Was the lessee, then, in order to avail himself of the privilege of a longer term than one year under this lease, bound to notify the lessor of such intention, at the expiration of the first year, or before suit brought by the lessor to oust him, for continuing contrary to the conditions or covenants of his lease ?
This is the only question raised by the plaintiff in error.
The lease was “for the term of one year, with the privilege of having the same three years at the same rent, at the option of the lessee.” And the lessee, among other things, covenanted “at the end of said term, to deliver up quiet and peaceable possession of said premises.” He had, when the suit was instituted to oust him, continued in possession five days after the expiration of one year, with*297out otherwise giving notice of his intention to avail himself of the option for the longer term provided by the lease.
The Circuit Court held in effect, that this continuance m possession, after the expiration of the first year, was not an exercise of the option thus to continue for the longer term; and that, to give him the right to continue for the optional term, he was bound to give actual notice of such intention at the end of the first year, or, at least, before the suit to eject him was commenced. Such a notice had it been given would have been a notice only of the lessee’s intention to continue the same occupation, upon the same terms as before. And upon principle it would certainly seem that the actual continuance of such occupation was the best and most conclusive evidence of Ms intention to continue. And, as it was at his option to have the term expire at one year or three years, and he had covenanted to deliver up possession at the end of the term; but one inference could legally and properly be drawn from such continuance, after the year, viz: that he intended to continue rigMfully according to the terms of his lease, rather than wrongfully in defiance of its provisions. If he elected to remain at all after the first year, he must be held to have elected under, and according to, the terms of th.e lease which gave him no right to elect a term of five days, a month or any other period, except the optional term provided by the lease, which in this case could not have been less than one year, if in fact, less than two years, after the expiration of the first.
We think such should be the result upon principle; and, though we are aw7are of no case precisely in point in all its circumstances, we think the same principle is involved, or taken for granted, in several of the cases cited by the counsel for the plaintiff in error. See especially Ferguson v. Cornish, 3 T. R. 463, (n); Dann v. Spurrier, 3 Bos. & Pul. 399, 442; Webb v. Dixon 9 East, 15 ; Brewer v. Thorp, 35 Ala. 9 ; Kelso v. Kelly, 1 Daly, 419 ; Kramer v. Cook, 7 Gray, 550.
*298This is not like the case of taking the advantage of a forfeiture of a lease or other contract. In such cases a change of the existing state of things, or of the relations of the parties is contemplated by the exercise of the option, and not a mere continuance of the same state of things or the same relations; and to effect this change a notice is very properly held to be necessary.
Nor is the option for a longer term under this lease, like a covenant for the renewal of a lease at the option of the lessee. Such renewal contemplates the execution of some further instrument by the lessor, and generally by both lessor and lessee, instead of a mere continuance of the one already in existence (as in the present case); and for this purpose a notice by the lessee might be required.
■ Whether such continuance in possession after the expiration of the year would, in all cases, be conclusive upon the lessee of his election for the full optional term, or whether it might be excused or explained by circumstances, or by notice from him to the lessor at, or prior to the expiration of the year, of his intention to remove soon after that time, and not to claim the optional term, are questions not involved in the present case and upon which we express no opinion.
The judgment of the Circuit Court must be reversed, and a judgment must be rendered in this Court for the defendant below, with costs of both Courts.
The other Justices concurred.