dissenting:
I find myself unable to concur in the conclusion reached in this case by my associates, for the following reasons:
The question presented in this case for our consideration is: Can a binding parol agreement be made between landlord and tenant while the tenant is in possession of the premises under a written lease for one year and before the expiration of the term, whereby the term of the holding is changed to a tenancy from month to month?
The defendant occupied the premises belonging to the plaintiff in error under a lease for one year. Defendant in error claims that before the expiration of the year he made a verbal agreement with the plaintiff in error that he might hold from month to month, after the expiration of the year, upon the payment of the same monthly rental until such time as he desired to vacate the premises. Plaintiff in error", who was defendant below, denied that such an agreement was made.
The tenant, defendant in error, vacated the premises after occupying them thirteen months, and at the end of the second year the landlord, the plaintiff in error, brought suit to recover the difference between the amount of the rent which would be due under the lease, and the amount of rent which he received upon a re-letting of the premises. The landlord, "Walker, rented the premises for a part of the year and received $291.67, while the rental under the lease was to have been $440 for eleven months; and the action was to recover the difference — $148.33.
Upon the trial of the case the court admitted evidence of the parol agreement between the landlord and tenant, over the objection of counsel for plaintiff.
*378The court charged the jury in substance that if they should find that the landlord and tenant had made a parol agreement while the tenant was in possession under the lease, the tenant might after the end of the year continue as a tenant from month to month, and if they further found that the tenant had paid for the entire time that he had occupied the premises, they should return a verdict for the defendant. This charge was excepted to by the plaintiff, and the jury returned a verdict in favor of the defendant. The cause is now here on error.
It is claimed that the court erred in admitting the evidence of the oral agreement between plaintiff and defendant and in charging as above set forth.
In the unreported case of Corbin v. Hafer, supra, the court says:
“Judgment of the general term reversed and that of special term affirmed, on authority of Moore v. Harter, 67 Ohio St. 250.”
The ease of Corbin v. Hafer, 14 Dec. 674 as decided by the general term of the superior court of Cincinnati, Judges Hosea, Ferris and Hoffheimer sitting. The facts int hat case ass hown int hat report disclose a case .identical with the instant case. In the trial of that case in the superior court in special term before Judge Rufus B. Smith, a verdict was returned in favor of the defendant and a judgment entered thereon. Corbin claimed to have made a verbal agreement with Hafer, while he, Corbin, was occupying the premises under a lease from year to year, whereby Hafer agreed that he, Corbin, could after the expiration of the year occupy the premises from month to month. Hafer denied that this agreement was made. Evidence was admitted by the trial court of the conversation between Corbin and Hafer that established the parol agreement for a holding from month to month. A special charge asked by Hafer to the effect that, unless the agreement as to the change of the terms of tenancy was in writing under the statute of frauds the agreement would be null and void, was refused and exception noted. In the general charge the court told the jury that if the agreement was established in parol and the rent was paid for the entire time that the tenant occupied the premises Hafer could not recover against Corbin for the remainder of the *379year, and an exception was noted. The general term reversed the special term and entered judgment in favor of Hafer for the amount of the rent due for the remainder of the year. These appear to be only errors claimed to exist in this ease, and the Supreme Court having reversed the general term upon the authority of Moore v. Harter, supra, we should look to that case to determine what principle was involved in its decision.
In Moore v. Harter, a tenant was occupying premises under a yearly lease from April 1,1892. and without any further lease continued to occupy the same until April 1, 1895, paying therefor $450 per year. Before the expiration of the last year the landlord notified the tenant that the rent for the next year would be $500 per year instead of $450. The tenant held over without giving any notice, intention or intimation that he was dissatisfied with the increased rent. It was held that by holding over after being notified by the landlord that the rent would be increased from $450 to $500 a year the tenant became liable for the entire yearly rental at the increased rate of $500. The syllabus of the case is as follows:
“When a tenant at the expiration of a written lease, holds over as a tenant from year to year, upon the terms of the original lease, and the landlord notifies the tenant, before the beginning of another year, that if the latter holds over into another year the rent will be increased, and the tenant does so hold over, the terms and conditions of the original lease will be modified in' respect to the rent so as to conform to such notice, but in all other respects they will continue to be applicable to the new tenancy. Armstrong v. Kattenhorn, 11 Ohio 265, distinguished.”
On page 258 of this report the court says:
“It follows that the lessor and lessee may by agreement change the terms of the original tenancy; and if, before the beginning of another year, the landlord notifies the tenant that the rent will be increased and the latter nevertheless holds over into another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason of this is that the tenant must be presumed to have *380assented to the change. The authorities are numerous and conclusive on this point. ’ ’ Citing several authorities.
On page 254 the court distinguishes the ease of Armstrong v. Kattenhorn, 11 Ohio 265, as follows:
“The doctrine of Armstrong v. Kattenhorn is that if the possession of the tenant ‘can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies. ’ The possession in that case was held to be ambiguous and as easily referable to the old léase as to the new one, and hence that the latter was within the statute of frauds and void. Although the statute of frauds declares that leases not in conformity with the statute shall be void, yet that will not prevent a periodical tenancy, subject to the terms of the original lease, from arising by taking possession under the invalid lease and paying rent in accordance therewith.” (Citing numerous authorities.) “And that is precisely that which was done in this case and in all the cases cited above as included in the same class. The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions. It could not be referable to the former lease without showing that the landlord had consented to withdraw the conditions.”
In the case before us the rule which the trial court laid down was applied on a state of facts, the converse of the facts in the case of Moore v. Harter, supra. In Moore v. Harter, the landlord stated the terms and conditions upon which the tenant could remain, and the tenant remained without making any objection, and it was held that by so doing he had agreed to the landlord’s conditions and acquiesced as it were, and was therefore bound. In the ease before us the tenant made the proposition to the landlord that he would remain as a tenant only from month to month and the landlord agreed to this proposition. The tenant continued in possession after this for one month, and it appears to me that if the rule laid down in Moore v. Harter is applicable to the case of Corbin v. Hafer it must also be applicable to the case under consideration. The tenant and the land*381lord agreed verbally to a change in the terms of the lease, and the continued possession of the tenant is under the new parol agreement made between the landlord and tenant. It app'ears to me that if a parol agreement between landlord and tenant to increase the rent can be made while a tenant is holding under a written lease, then an agreement between the landlord and tenant to change the tenancy from a yearly to a monthly one can also rest in parol.
I apprehend that there is no special merit in a claim that a landlord only may make an oral proposition to modify the terms of a written lease, before the expiration of the term, which may be orally accepted by the -tenant or accepted by the acquiescence and thus bind the tenant. Upon what rational grounds can it be claimed that a tenant under a written lease for a year may not make an oral proposition to his landlord during the term, to modify its terms as to the rent or duration of the term, which being accepted orally by the landlord will not bind the landlord ? Shall there be a different rule of law applied to a tenant from that applied to a landlord? Can it be material whether the agreement between the landlord and tenant results from the landlord accepting verbally the tenant’s offer, or the tenant verbally accepting the landlord’s oral offer? It appears to me to be a case of tweedle-dum and tweedle-dee. If the holding over-is referable to the oral agreement, then it must stand as the agreement of the parties regardless of whether the proposal came from the landlord or the tenant. The only question is: Did the minds of the parties meet in the oral agreement?
I would not rest my dissenting opinion upon the unreported case of Corbin v. Hafer, but I find that the principles laid down in Moore v. Harter upon the authority of which Corbin v. Hafer was reversed by the Supreme Court, apply to the facts in the instant case, and I come to the conclusion that the court of common pleas in the trial of the case below did not err in admitting the evidence complained of, showing the parol agreement between the landlord and the tenant; nor did the court err in its charge to the jury that they should consider the evidence of the oral agreement.
The jm’y having found against the landlord Walker, I can *382not say that the verdict is against the weight of the evidence. Nor indeed is it seriously claimed that this court should reverse the lower court upon the weight of the evidence, but only on account of the errors of the trial court in admitting the evidence of the parol agreement to change the' terms of the tenancy, and in refusing to rule out that evidence after it was admitted, and in charging that the jury might consider parol evidence as to the change of the terms of the tenancy.
It appears to me that under Moore v. Harter plaintiff is not required to show that the agreement for a change of the tenancy was in writing under the statute of fraud in order to make binding the agreement between landlord and tenant entered into while the tenant is in possession under a written lease from year to year or for any other term.
Jones, Land. Ten. See. 210, p.250, in discussing this question uses the following language:
"But when the landlord has by his conduct led the tenant to believe that he will not be charged as tenant for the entire year it is axiomatic that the landlord can not change his position and fix an unexpected burden of liability upon the tenancy. So it follows that any new agreement between a landlord and tenant, relative to the continued occupancy of leased premises after the termination of the term precludes the landlord from charging the tenant with liability for a full year’s rent by reason of such continued occupancy.
‘£ This result is not contingent on the fact that the new agreement is valid and capable of enforcement; it rests on an estoppel against the landlord for inducing the tenant to act on his representations. And it matters not that the new contract was invalid under the statute of frauds because not in writing. ’ ’ (Citing Singer Mfg. Co. v. Sayre, 75 Ala. 270; Crommelin v. Theiss, 31 Ala. 412; contra, Parker v. Hollis, 50 Ala. 411.) "The continued payment and receipt of rent after the expiration of the term is not necessarily inconsistent with the existence of a new agreement between the parties.”
Without undertaking further to discuss all the authorities cited by counsel for the parties to this proceeding, I content myself with holding that under the authority of Moore v. Harter, *383approved in Corbin v. Hafer, supra, a parol agreement may be entered into between landlord and tenant, during the term of a written lease for one year while the tenant is in possession under the lease, which modifies the terms and conditions of the lease, and the statute of frauds can not be invoked to nullify the parol agreement.