Brown v. Bradshaw

McWilliams, J., delivered the opinion of the Court. The appellants (Brown) 1 own a building in Gaithersburg which, on 18 March 1955, was leased to the appellee (Bradshaw) for a term of 5 years. According to Bradshaw the building soon became too small for his expanding business. He acquainted Brown with his problem.

Brown, being both sympathetic and cooperative, employed an architect to develop plans which would have doubled the size of the building but, said Brown, “it worked out to more money than Mr. Bradshaw w’anted to tackle” and he [Bradshaw] “backed away from it.” Bradshaw thought he might be able to solve the problem himself if he could build on or otherwise use the vacant lot adjoining the building. The lot had been specifically excluded from the lease. On 11 March 1960, just before the lease expired, Brown and Bradshaw 2 executed an agreement the effect 3 of which was to ⁵²⁸ extend the lease for a term of 13 years and add the vacant lot to the leased premises. Md. Theatrical Corp. v. Manayunk Trust Co., 157 Md. 602, 610-14, 146 Atl. 805 (1929).

Bradshaw was given the right to terminate the lease during the last 3 months of the third year and, if not then terminated, during the last three months of the eighth year. Termination was to be accomplished by “notice in writing” of Bradshaw’s “intention to vacate and surrender the premises.” In the absence of such a notice he would continue to be bound by the lease. Bradshaw agreed also to pay more rent, all of the real property taxes and all of the hazard insurance premiums. “All other terms and conditions of the [original] lease * * * [were] declared to be a part” of the extension agreement. On 28 December 1962 Bradshaw mailed to Brown the letter reproduced below.

It will be noted that the third year of the extension expired on 31 March 1963. Brown received the letter on 2 January 1963 and that this was “within three (3) months of” 31 March 1963 is not disputed. ⁵²⁹ December 28th, 1962. “Mr. R. Edwin Brown. Jefferson & Monroe Streets, Rockville, Maryland. Dear Sir: “I would like an entention [sic] on my present lease with you at, 302 — East Diamond Avenue, Gaithersburg, Maryland through October 31st, 1963, at which time we will have vacated your property. “After the first of the year (January 1963) I will give you a call and talk to you about this matter. “I thank you for your past favors.

Sincerely yours, /s/ M. W. Bradshaw M. W. Bradshaw. Western Auto Associate Store. 302 — East Diamond Avenue, Gaithersburg, Maryland.” Bradshaw went to see Brown between 8 and 12 January. He was alone, he said, but Brown thought he was accompanied by one of his employees. The conversation was “very brief.” Brown told “Bradshaw that if he held over after the 31st of March that * * * [he] would hold him to the terms of the lease.” He told Bradshaw, however, that although the lease did not give him the right to sublet the premises or assign the lease “without the written consent of the Landlords” he would give his consent if Bradshaw could get “a decent tenant.” According to Brown Bradshaw replied, in substance, “if that’s it, that’s it.” Brown said “they thanked me and left.” Bradshaw did not contradict Brown’s statement that he would be held to the terms of the lease.

He said he told Brown “the store just wasn’t large enough” for him. In his testimony he said he “felt that the letter * * * [he] had sent him [Brown] was reasonable enough notice for me to discontinue rental from him at a later date and * * * [he] felt that he [Brown] would extend the lease.” He admitted Brown told him he would be permitted to sublet if he “could find a tenant that he [Brown] was agreeable on.” ⁵³⁰ Counsel for Bradshaw made much of the fact that Brown is an attorney and that he prepared both the original lease and the extension agreement. Whether, on either occasion, Bradshaw had the benefit of counsel is not a matter of record but there can be no doubt that counsel was available to him. What has greater significance, however, is the fact that Bradshaw consulted the attorney who appeared for him in this appeal after his conversation in January with Brown but before 31 March 1963.

Brown heard nothing more from Bradshaw but “sometime in the summer of 1963” Bradshaw’s attorney told Brown that in his opinion the lease ran from year to year. Brown told him he was “all wet” and that he was “going to hold Bradshaw to” the terms of the lease except that he would let him sublet. On 17 September 1963 Bradshaw’s attorney wrote the following letter to Brown: “R. Edwin Brown, Esquire 260 East Jefferson Street Rockville, Maryland Re: Western Auto-Gaithersburg-Lease Dear Ed: “You will recall, that sometime ago I approached you on behalf of Murray Bradshaw regarding his lease with you for the Western Auto store in Gaithersburg. This followed Murray’s earlier personal letter to you of December 28, 1962. “As you may know, Murray has made an agreement with Lawson King to move into and occupy a more desirable property in Gaithersburg for his store.

This new premises will be available sometime this coming spring and will alleviate for Murray the problems he has with the present location; being a shortage of floor space, a lack of merchandise loading space, and will give him facilities for tire changing and other work which he now does not have. “I should like to advise you at this time, therefore, that Murray will vacate the premises now leased to him by you on or before March 31, 1964, which will ⁵³¹ be the expiration of his current term as I view the lease. Of course, if Murray leaves prior to March 31, 1964, he understands he will be responsible for rent to that date. “The purpose of writing you this far in advance is to give you all the notice possible so you may seek a new tenant for the building. We desire to cooperate fully in this matter, and we shall likewise attempt to find a new, prospective tenant. If you have any questions concerning this matter, please feel free to call me at your convenience.

Very truly yours, /s/ Charles Charles W. Bell” Brown’s prompt reply follows: “Charles W. Bell, Esquire September 18, 1963 Attorney-at-Law Kelley Building Rockville, Md., 20850 In re: Murray W. and Ora B. Bradshaw lease Dear Charlie: “I wish to acknowledge receipt of your registered letter of September 17. “I am obliged to advise you, as attorney for Mr. and Mrs. Bradshaw, that the present term of their lease with me will, upon proper notice, expire on the 31st day of March, 1968. In the absence of this notice, the term will ordinarily renew for an additional 5 year period. I advised Mr. Bradshaw of this when he called to see me here at my office last spring. I also advised him that he could sub-let the building with my consent; that I would not unreasonably withhold that consent, and that he should be prepared to continue with his lease whether he moved or not. “I am at a loss to understand how you read into the ⁵³² lease that the current terra expires on March 31, 1964, and should appreciate your advice in this regard. “With kindest regards, I am Very truly yours, R. Edwin Brown” There was no response to Brown’s letter of 18 September.

Some time during the month of March 1964 Bradshaw, as predicted by his attorney, vacated the premises. He had the key delivered to Brown but Brown refused to accept it. Later on the key arrived in the mail but Brown did not return it. He said he “didn’t see any sense in carrying it back up the street and putting it on Charlie’s [Bradshaw’s attorney] desk.” He referred prospective tenants to Bradshaw and, on one occasion, Ire reminded Bradshaw of his obligation to maintain the property.

When “it became obvious they [Bradshaw] weren’t going to do anything” Brown tried “to find a new tenant.” In July 1964 Brown sued to collect the rent for April, May, June and July. In November, upon the petition and affidavit of Bradshaw, the case was removed to Carroll County. On 1 March 1965, after necessary repairs, Brown rented the property to Earl Daymude. In April 1965 Brown amended his declaration so as to claim rent from 1 April 1964 to 28 February 1965 ($2475), State and County taxes ($317.95), Gaithersburg Town taxes ($54.93) and the cost of the repairs ($1601.-40).

The case was tried before Weant, J. and a jury on 30 November 1965. After the denial of Brown’s motion for a new trial the clerk entered a judgment ($1000) on the verdict in Lis favor against Bradshaw. I. The first of Brown’s three contentions concerns Bradshaw’s Prayer No. 1, which the court read to the jury and which follows : “If you find from the evidence in this case that the landlord expressly or impliedly consented to the tenant remaining for a temporary period after the expiration of the term of the lease, or that the landlord and tenant were engaged in negotiations as to the renewal of the lease, then the landlord cannot hold the ⁵³³ tenant for the full term of five years, but rather the landlord can treat the tenant as a trespasser or as a tenant from year to year.” We have found in the record no evidence which could support a finding that Brown agreed, expressly or impliedly, to allow Bradshaw to remain on the property for “a temporary period” after 31 March 1963. Bradshaw asked only for “an extension * * * through October 31st 1963.” He went on to say, of course, that “we will have vacated your property” before 31 October but this was nothing more than an inducement to Brown to grant the extension.

Brown’s answer to this request was short and emphatic and it has not been contradicted. Moreover Bradshaw admitted, when he testified, that Brown told him he was willing to relax the prohibition against subletting, a concession quite inconsistent with the language of the prayer. Nor do we find any evidence that Brown and Bradshaw were engaged in “negotiations as to the renewal of the lease.” We think “negotiations” connotes something more than the flat refusal of a simple request. Attrill v. Patterson, 58 Md. 226, 245 (1882).

See also the quotation from Tonkel v. Riteman, 163 Miss. 216 , 141 So. 344 (1932) in Donnelly Adver. Corp. v. Flaccomio, 216 Md. 113, 123-4 , 140 A. 2d 165 (1958). In any event, there was no need to negotiate for the “renewal of the lease.” The lease was in full force and effect and it was not about to expire. Felting Etc.

Co. v. Waltz, 160 Md. 50 , 152 Atl. 434 (1930). After the conversation in Brown’s office early in January Bradshaw had available to him two alternatives. He could have given Brown proper written notice of his intention to terminate the lease or, by standing mute, he could have allowed the lease to move automatically into its next stage. Since he consulted counsel it must be assumed that his choice of the latter alternative was deliberate and intentional.

If, however, as the record seems to suggest, he was advised that his letter of 28 December was notice sufficient to terminate the lease on 31 March-1963, we think he was given incorrect advice. In our judgment, to say that asking for a concession not contemplated by the lease has the same effect as giving the notice of an intention to terminate required by and described in the lease is quite like- ⁵³⁴ confusing chalk with cheese. Had he pursued the other alternative (i.e., terminated the lease by proper notice) he could have remained in possession, leaving the next move to Brown. This would have forced Brown to elect whether to treat him as a tenant from year to year or to proceed against him, as a tenant holding over, in the Montgomery County People’s Court under the provisions of Code, Art. 53, § 1 or in the Circuit Court under Maryland Rule T 40.

Messall v. Merlands Club, 244 Md. 18, 29 , 222 A. 2d 627 (1966). Bradshaw does not contend that Brown was negligent or dilatory in mitigating his damages or that he did not act in good faith. Nor was any such showing made in the court below. In the circumstances we think Brown was entitled to his rent for the 11 months the property was without a tenant and the trial judge should have so instructed the jury.

It follows, of course, that Bradshaw’s Prayer No. 1 should not have been granted.

II

Brown next contends that the trial judge should not have granted Bradshaw’s Prayer No. 4, which follows: “When a landlord has the election as to whether he will treat a tenant holding over after the expiration of his term as a trespasser or as a periodic tenant, the landlord is required to make his election known to the tenant within a reasonable time and it is up to you to determine whether such election was made known to the defendant.” When Judge Weant read Prayer No. 4 to the jury he