DISSENTING OPINION
By LIEGHLEY, PJ.On or about the 1st day of December, 1931, plaintiff and defendant entered into a certain lease covering certain parcel of land for use as a gasoline and oil station for a period of one year beginning on the 1st day of December, 1931, and ending on ibe 30lh day of November, 1932, with an option to the lessee for renewal from year to year for the full term of three years, by giving written notice of its election to extend the term at least thirty days before ihe expiration of each yearly term. The süpulaied rental was $1500.00 per year, payable in monthly installments in advance of $150.00 per month. The defendant gave proper notice of renewal near the expiration of the first year.
Defendant did not give notice of renewal prior to the expiration date of the second year, to-wit, Nov. 30, 1933. On the contrary, defendant notified plaintiff prior io said date, during the month of November, that it did not intend to renew the lease upon a yearly basis. It did notify plaintiff at the same time of its desire to continue for an indefinite period on a month to month basis, and sought a letter from plaintiff prior to November 30, 1933 consenting and granting to it the right to occupy the premises upon such terms. The record clearly establishes this proposition of the defendant to plaintiff. The plaintiff desired time for consideration and conference with her counsel. Either through neglect or design such letter was never written or delivered prio3- to the expiration of the second yearly tenancy. There Is some substantial evidence to justify the claim of defendant that plaintiff designedly postponed a reply and prolonged the negotiations of connivance to ihe end that such time would elapse that a claim of hold-over might be made.
In early December, defendant mailed its check for $150.00 accompanied by a letter asserting its month to month tenancy and payment tendered conditioned upon such understanding. This procedure was fol*160lowed lor the four succeeding months. In March, 1934, the defendant notified plaintiff of its intention to vacate said premises and on said date did so. These checks were regularly and promptly returned by counsel for plaintiff to whom they were sent by plaintiff and acceptance upon the conditions attached refused.
Thereafter, suit was brought in Municipal Court for the full sum of the annual rental plus interest, for which judgment was rendered. Notice of appeal was filed to this court to review said judgment.
The controlling facts seem to be more positively fixed in this record than they were in the record at the time this case was here in- this court for review before. It is now definitely established that defendant notified plaintiff in November, 1933, on more than one occasion that it would not renew this lease.
It is definitely established that defendant sought to negotiate with plaintiff a month to month tenancy in order that it might continue its established business while it carried on and concluded a certain survey of its properties with a view to relocating and revising its distributive system. It is definitely established that plaintiff either negligently or designedly postponed the conclusion of these negotiations and did not expressly refuse the proposal of the defendant until after the expiration date of the yearly tenancy when plaintiff made a 'claim of hold-over tenancy. Defendant cannot be criticized if, under these circumstances, it entertained the impression on December 1st, that plaintiff was acquiescing in its request. After receiving notice that defendant did not intend to renew, plaintiff did not exercise her legal right to give notice to vacate but seemingly acquiesced in its right to remain upon the terms requested.
It may be said that upon receipt of the check by plaintiff in the early part of December, and its return by her to defendant, that defendant then well knew that consent to a month to month tenancy had not been granted. However, the rights of these parties must be determined by the facts and" circumstances as they existed on Dec. 1, 1933.
Plaintiff received and returned four checks thereafter well knowing that defendant was claiming and asserting a month to month tenancy by reason of the negotiations and conduct of the parties, at or about the expiration date and at no time demanded a vacation of the premises.
The obligation to pay rent is grounded upon contract, express or implied. This action is not based upon express contract. An implied contract on the theory of holdover is relied upon. An implied contract exists by implication of law arising from the conduct of the parties and their apparent acquiescence therein and thereto. There can be no implied contract in a case in which one party has expressly notified the other party that a yearly tenancy is not renewed. To claim that an implied contract arose in this case as a basis for an action for rental is inconsistent, unten-able and rebutted by the timely express notice of the defendant. The mere fact, if it be a fact, that defendant was cajoled into the belief by the acts and conduct of the plaintiff that she was acceding and agreeing to a month to month tenancy coupled with the positive notice that there would be no renewal, certainly can not serve and operate to create an agreement by implication to pay rent for a year upon a theory of hold over. If the facts and circumstances were reversed, could the defendant prevail in claiming that it had a legal right to occupy the premises for a full yearly tenancy?
The mere act of holding over by the lessee to which the lessor acquiesces creates another term. Thereupon the lessee is liable for the rental for the term and the lessor can not repossess during the term. Here the hold over occurred while negotiations for a new contract were pending after notice to plaintiff that defendant would not renew given after the time for a proper thirty day notice but before the term expired. These facts rebut an implied contract of renewal. A voluntary holdover implied an intention to renew and acquiesced in by the lessor imports a contract. This does not follow when such intention is expressly and timely denied and the holdover seemingly induced.
The defendant admits liability for five months rent for the period that the premises were occupied by it. If the defendant under the circumstances of . this case was not a month to month tenant with the right to vacate when it did, then defendant is liable only for the use and occupation the value of which has been fixed by its several tenders of rent.
It is my opinion that the foregoing conclusions reached upon the facts of this case are fully justified by the syllabus and opinion of the case of Bumiller v Walker, 95 Oh St 344.