Bradford v. Patten

Morton, J.

The lease executed by the defendant’s intestate was for one year from June 1, 1868. It contained the provision that “ said Gates shall have this lease extended two years from April 1,1869, upon notifying the lessor that he elects to retain the premises; ” and in another part the clause, “ it is understood that said Gates shall notify the lessor of his wish to retain the premises by April 1,1869.”

These provisions gave the lessee the right to have the term ex tended upon giving notice of his election, as provided in the lease. But his election to retain the premises for the enlarged term, and the giving notice thereof to the lessor, were conditions precedent *155 to the extension of the term. If he failed to perform these conditions, the term expired by its own limitation on June 1, 1869, the lease then became inoperative, and the lessor was entitled to the possession of the premises. It may be that the lessor might waive the provision as to notice to her; but in order to hold the lessee liable under the covenants of the lease for rent for any part of the enlarged term, it is still incumbent upon her to prove that he elected to hold the premises for the extended term. Kramer v. Cook, 7 Gray, 550 .

If it be assumed that the defendant had the same rights and was subject to the same liabilities under the lease, as his intestate, the burden of proof was upon the plaintiff, in this action, to show that the defendant had elected to extend the term. This was a question of fact, necessarily involved in the finding of the judge who tried the case. The mere facts that the widow of the lessee occupied the premises after the expiration of the term, and that the defendant paid for such use and occupation as stated in the bill of exceptions, do not, as matter of law, show that the defendant made such election. The finding of the judge, like the verdict of a jury, is conclusive upon this question.

¡Exceptions overruled.