On appeal from the Orange District Court.
For the defendant-appellant, Gross & Blumberg (Milton H. Goldberger).
For the plaintiff-respondent, John J. Hanlon, Jr., and Alex R. DeSevo.
Before Justices Trenchard, Bodine and Porter.
BODINE, J. The defendant leased from the plaintiff an apartment in Jersey City. The lease expired September 30th, 1935. However, it contained the following clause: "Sixty day notice in writing must be given if this lease is to be discontinued upon terminating date by either party on this lease." The facts are stipulated.
On June 21st, 1935, the tenant notified the landlord that the lease would be discontinued at its expiration pursuant to the provisions quoted. He said in his letter of notification: "Please advise me whether you have any objection to my remaining as a tenant from month to month after the expiration date of said lease." The landlord replied: "We herein advise that we do not have any objections to you remaining on a month to month basis after expiration date of lease."
The landlord had recovery for the October rent on the monthly basis, although the tenant moved out at the expiration of the term for a year.
The problem in the District Court was, whether there was a monthly term created by these letters. Note that the parties use the words "objection" and "objections." Webster defines "objection" as follows: "Act of objecting; as, to prevent action by objection. That which is, or may be, presented in opposition; an adverse reason or argument: a reason for objecting or opposing; also a feeling of disapproval; as I have no objection to going; unreasonable objections." (Italics ours.)
In Broad Street National Bank of Trenton v. Collier, 112 N.J.L. 41; affirmed, 113 Id. 303, relied upon by the defendant, one obligated as an endorser on a note, the principal obligor being a possible recipient of funds, wrote to the bank, "I trust you will appreciate my position and take care of me."
To which the bank replied, "We shall be glad to comply with your wishes." Held, no contract. Certainly, there was no meeting of the minds and no consideration.
Implied contracts do not arise when there is an express contract between the same parties in reference to the same subject-matter. Voorhees v. Combs, 33 N.J.L. 494.
Appellant's brief informs us that when the defendant wrote to inquire of the landlord if there was any reason or objection why he should not remain as tenant from month to month that he was looking for a residence and wanted to know that, "if his search took longer than anticipated, he might remain in the premises as a tenant from month to month." The answer received was definite that there was no reason or objection why he should not remain. The minds of the parties met on the proposition that the defendant at the expiration of the term would be a monthly tenant. The defendant desired this peace of mind and the landlord accepted the ...