As before observed, because of the improper execution of the original lease the possession thereunder by the defendant created a tenancy only from year to year or month to month. Under the case of Building Company, v. Watt, 96 OS. 74, whether such tenancy is one from year to year or month to month depends upon the terms as to the payment of rental. In the instant case the instrument provided for the payment of rent monthly and notwithstanding a yearly rental is named we conclude that the tenancy of the defendant under such defective instrument was merely one from month to month. Rex Amusement Company v. Noland, 11 OA. 318. This question, however, is not very material as under the admitted facts the defendant vacated the property at the end of a yearl and of a month.
Directing attention now to the correspondence which it is contended by the plaintiff made a new contract, it will be observed that the plaintiff accepted the proposal of the defendant upon the express condition that such acceptance “shall in no way affect or change any of the other terms or conditions of the lease.” The effect of this acceptance was to limit the new agreement to the amount of rental only and did not in any way change or affect any of the terms and conditions of the lease except as to the amount or monthly rental. Now, as we have already observed, this instrument amounted to nothing more than a lease from month to month. There is nothing in this correspondence, and could be nothing in it, which would make the original lease a valid and binding contract between the parties for a term to expire on the 31st day of August, 1926. It could not by adopting the term named in the original lease change such term to one for five years instead of one for month to month.
The judgment is affirmed.
(Cushing, J., and Lemert, J., concur.)