Blanchon and Bartholomees v. Distilling Corp. contract. It was no more than if defendant had said to plaintiff that he would credit him on the total price due with some named amount. In Montgomery v. Gann, 51 Mo. App. 187, it was held that if the identical wheat purchased was delivered at the place agreed, there was a delivery under the statute, although some of the wheat was unfit. To the same effect practically is Furniture Co. v. Clearing Co., 186 Mo. App. 207. We think the judgment should be affirmed. All concur. ALINE BLANCHON and CHARLES F. BARTHOLOMEES, Executors of the last will and testament of JOHN BLANCHON, deceased, Appellants, v. KELLERSTRASS DISTILLING CORPORATION, Respondent. Kansas City Court of Appeals, January 27, 1919. LANDLORD AND TENANT: Holding over Term: Leases. Where a lessee holds over after the expiration of the term of his lease without giving notice of his desire to renew as required by the lease, and continues to pay rent and the landlord accepts it, his tenancy is upon the same terms, conditions and covenants as in the original lease and for a new term the same as the one provided in said lease. Appeal from Jackson Circuit Court.-Hon. Thos. B. Buckner, Judge. REVERSED AND REMANDED. John D. Wendorff for appellants. TRIMBLE, J.-This action, in two counts, grows out of the relation of landlord and tenant created between John Blanchon and the defendant by a written lease in which the former leased to the latter the three story building at 526 Delaware street in Kansas City, Mo. The first count seeks to recover for damages to the elevator, plate glass and plastering of the building, injured or destroyed during the lessee's occupancy and Blanchon and Bartholomees v. Distilling Corp. for the filthy condition in which the building was left by the tenant; the second count was for the rent of said building accruing from the time the tenant left until the end of the term for which the owner asserted the lessee was bound. The case was tried by the court without a jury. On the first count, judgment was rendered for plaintiff in the sum of $15, of which $10 was for damage to the plastering and $5 was on account of the filth left in the building. On the second count, judgment was for defendant. The landlord, Blanchon, appealed. Thereafter, appellant died and the cause was revived in this court and the deceased's executors substituted in his stead. The lease was dated March 18, 1915, and leased said building "in the present condition thereof" to the defendant "for a term of one year beginning the 1st day of April, 1915, and ending on the 31st day of March, 1916, with the privilege of renewing this lease upon the same terms and conditions hereinafter expressed: Provided, However, in order that the lessee may have the privilege of renewing this lease, it shall give notice in writing to the lessor herein of its intention so to renew said lease at least sixty (60) days before the expiration of the term hereof.” The agreed rent for the term was $600 per annum "payable in monthly installments" of $50 each on the first of each month in advance during the term. The lease further provided that the lessee should "keep said premises in good and sufficient repair and free and clear from dirt and filth" and that lessee would, at the expiration of the term of the lease, yield up the premises "in as good condition as when the same were entered upon by said lessee, loss by fire, inevitable accident, and ordinary wear and tear excepted." At the time the defendant took possession under the lease the building was clean and the elevator had been repaired and put in condition with the exception of the packing which the landlord later replaced with new packing as soon as the new fittings had become adjusted and smooth from use. Blanchon and Bartholomees v. Distilling Corp. The defendant occupied said premises paying the rent regularly in monthly installments of $50 each (depositing them in bank to the lessor's credit) from the 1st day of April, 1915, to November 1, 1916. The defendant gave no notice of intention to renew the lease sixty days before March 31, 1916, the end of the term in the lease, nor were any negotiations had or pending between the parties at that time. When that date arrived nothing was said by either party but the defendant continued to pay, and the landlord to accept, the monthly installments of rent as theretofore. On September 12, 1916, the elevator, while in the exclusive possession and control of and being operated by defendant, broke down. Defendant notified the landlord to repair or replace it. The latter did not do so and on September 16, 1916, defendant gave written notice of its intention to terminate the tenancy on or before October 31, 1916, and moved out before November 1st after paying the installment of rent due October 1st. It will be observed that upon the expiration of the yearly term originally provided for in the lease, the tenant, without any negotiations and without anything being said or done on either side, held over and continued to occupy the premises and pay rent as it had therefore done. The question is, what was the nature of the tenancy from and after the 31st of March, 1916? Was it a holding over under the written lease for another year on the same terms and conditions? Or did it, by reason of the mere failure of the tenant to give the sixty days' notice, become a parol lease which, under, section 2781 Revised Statute 1909, would create a tenancy at will, but which by reason of section 7883, would be turned into a tenancy from month to month, the leased property being a building in town? The leases dealt with in section 2781 are those "not put in writing" and those mentioned in section 7883 are leases "not made in writing." There being no negotiations of any character pending or attempted be Blanchon and Bartholomees v. Distilling Corp. tween the parties on the expiration of the original term provided for in the lease, it is difficult to see how the tenancy from and after March 31, 1916, can be regarded as resting in any manner upon a parol letting. Nothing of the sort was engaged in. The written lease provided for a renewal or extension thereof upon the same terms and conditions as before. The courts of our State adhere to the view that there is no practical difference between the privilege of a "renewal" and an "extension," unless there is something manifesting an intention that a new lease should be executed. [Insurance and Law Building Co. v. The National Bank of Missouri, 71 Mo. 58, 60-62; Medicus v. Altman, 199 Mo. App. 466, 469.] There is nothing in the lease, in the case at bar, to show that a new lease was to be executed or that any other tenancy was in contemplation. As there were no negotiations whatever relating to the occupancy of the property upon the exp1ration of the original term, there is nothing except the written lease itself to which the right to hold over can be attributed. Hence, we think the tenancy in existence from and after April 1, 1916, the commencement of the holding over, should be regarded as a holding under the terms and privileges of the written lease. It is true it provided for sixty days' written notice to be given by the lessee. And while there is some disagreement among the courts of the different States, "the better view, however, seems to be that the provisions for notice to the lessor of the lessee's exercise of his privilege of renewal or extension is for the benefit of the lessor, and, therefore, if the lessee hold over without giving the required notice, the lessor may waive the requirement and his right to hold the lessee as for a renewal or extension of the term is the same as though such requirement had not been inserted in the lease." [16 R. C. L. 896. See, also, 24 Cyc. 1003; Lanham v. McWilliams, 64 S. E. 294; Probst v. Rochester Steam Laundry Co., 171 N. Y. 584; Bailey v. Plant, 31 N. Y. Supp. 1015; Holton v. Andrews, 151 N. C. 340; Kean v. Story and Clark Piano Co., 121 Minn. 198; Blanchon and Bartholomees v. Distilling Corp. Brooklyn Dock, etc., Co. v. Bahrenberg, 120 N. Y. Supp. 205; Quinn v. Vaglinitte, 80 Vt. 434.] The lease was for one year with a provision for a renewal or extension at lessee's option for another year on the same terms. The option was for lessee's benefit, the notice was for the lessor's; and this the latter could waive, and did waive. By the mere act of holding over, the lessee elects to exercise the option for extension, and by accepting the rent the lessor waives the notice. [Jones on Landlord and Tenant, sec. 342, pp. 363-4.1 It is a "well-settled rule that when a tenant with the consent of the landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms, conditions and covenants as in the original lease." [Lewis v. Perry, 149 Mo. 257, 267.] In this case the lease provided that, to warrant the renewals, the lessee should give three months' notice in writing of its intention to renew. It is nowhere stated that such notice was given but it is stated that rent was paid at the price stipulated in the lease and continued to be paid thereafter, and the court said: "That there was a second renewal for the next ensuing five years ending on the first day of December, 1894, so far as the appellant's interest in the premises was concerned is simply shown by the election of the lessee to continue in possession thereof, and the receipt by the appellant (lessor) of the quarterly rent therefor under the lease as before." The rule contained in the quotation hereabove made is supported by the following authorities: 18 Am. & Eng. Ency. of Law, 405; Peoples Bank v. Bennett, 159 Mo. App. 1, 5-9; Minton v. Steinhauer, 243 Mo. 51, 56; Hunt v. Bailey, 39 Mo. 259, 266; Finney v. City of St. Louis, 39 Mo. 177, 180; Curtis v. Sturgis, 64 Mo. App. 535; Insurance and Law Building Co. v. National Bank of Missouri, 5 Mo. App. 333, Ibidem, 71 Mo. 58.] If the law will imply that the intention of a holding-over tenant is to continue the tenancy on the same terms, then where the only thing authorizing the tenant to |