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Opinion of the Court, per FOLGER, J.

be referred solely to the rent accruing during such further time. Thus considered, we have a provision for further occupation, which by its terms definitely settles the amount of the rent, and, to an extent, the time for the payment of it; but by placing the length of time of such further occupation in the choice or election of the lessee, leaves it, a priori, entirely uncertain and indeterminate; and which precludes the implication from the provisions of the lease of anything as to these inatters.

If these provisions which have been referred to, and which are relied upon by the plaintiff, do constitute a covenant on the part of the lessor, the covenant made is not one for a renewal of the lease. There is no coincidence with that, but in the premises to be enjoyed, and in the amount of rent to be paid therefor.

If we treat these provisions as a covenant on the part of the lessor for a new lease, the question arises, is it valid and enforceable, or is it void for uncertainty; specific performance of which may not be adjudged? It has been held that where no term is fixed by the covenant, it is void for uncertainty. (Abeel v. Radcliff, 13 J. R., 296.) The covenant in that case was that the lessors should take the buildings on the lot at an appraisal of three indifferent men, to be chosen by the parties, or let the lot at a yearly rent to be thus fixed. The court beld that the covenant was void for uncertainty as to the term. And the decision is put upon the requirements of the statute of frauds. The agreement is condemned, inasmuch as being one which is required to be in writing, and hence to be certain in itself, or capable of being made so by a reference to something else whereby the terms can be ascertained with reasonable precision, it does not come up to the requirement. It would have been practicable in that case, for the lessors to have chosen or elected for what term they would have let the lot; there being no term specified, and they agreeing generally to let. And they did afterward offer to give a lease for a term not exceeding ten years. But no consideration is given to this fact in the opinion of the

Opinion of the Court, per FOLGER, J.

court; and the decision seems put upon the ground alone that the agreement is not in itself certain, and does not refer to something else which is. The subsequent determination of the lessor was not noticed. (See Wright v. Weeks, 25 N. Y., 153; Lawson v. Mead, Lalor's Supp., 158.) In Rutgers v. Hunter (6 J. C. R., 215) an agreement to redemise the premises at such rent and upon such terms as might be agreed upon was said by the chancellor to be quite analogous to the covenant in Abeel v. Radcliff (supra), to let the lot; and he seems to have thought it void for uncertainty. And in Tracy v. Albany Exch. Co. (3 Seld., 472) it is said by JEWETT, J., upon these and other authorities, that a covenant to renew upon such terms as might be agreed npon is void for uncertainty. See Whitlock v. Duffield (1 Hoffman's Ch. R., 110) to same effect. Nor does it seem that this is put upon the ground that, possibly there might be no agreement by the parties upon the terms, and so for the want of such agreement, never any certainty ; bnt upon the ground that at the time when the covenant was entered into, there was then no certainty in it as to the term, nor did it refer to any collateral fact or circumstance which gave certainty. It was thuis understood in Fish v. Hubbard's Adm’rs (21 Wend., 663, 664), where COWEN, J., says of Abeel v. Radcliffe: “The clause, rejected for uncertainty, had no reference to a subsisting object.”

And so it is said, that if one let lands for such a term as both parties shall please, this is but a lease at will; because what that term will be is utterly uncertain. (Bacon Ab. Lease, L., 3.) That is, as I understand the proposition, that it is at the time of the lease utterly uncertain, what term the parties will please, and not that they may never please to tix upon a certain term. For the certainty of the continuance of the term ought to be ascertained, either by the express limitation of the parties at the time of the lease made, or by a reference to some collateral fact, which may with equal certainty measure the continuance thereof; otherwise it will be void. (Id.) And in Whitlock v. Duffield (supra) it is said

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Opinion of the Court, per FOLGER, J.

to be a general principle that, for the court to decree a specific performance of an agreement, all of its material terms and conditions must be in writing, either in the agreement itself or by plain reference to a written paper supplying an omission.

Now it is plain, that there is nothing in the instrument before us which specifies and makes certain the term for which the new lease was to be given, or for which the lessee was to enjoy a further occupation after the first lease had expired. Nor is there any reference to any writing then in being, nor to any collateral fact or circumstance then existing, which made it certain.

It is claimed however by the plaintiff, that the election of the lessee properly signified, may operate to extend the instrument over the whole period, and make it a lease to cover not only the original term but the further time chosen. Chretien v. Doney (1 N. Y., 419) is cited as an authority for this position. In that case there was a lease for one year, and the lessee had the privilege to hold for one year, one month and twenty days longer; but if he left he was to give four months' notice before the expiration of the lease. No notice was given by the lessee, and the court held it a lease for the whole term of two years, one month and twenty days, at the rent named in the lease, and payable as therein named. But there the term was specified as to its length, resting in the option of the lessee whether the lease should continue through the term. And so it was in House v. Burr (24 Barb., 525), and in Ranlet v. Cook (44 N. H., 512). And in Tracy v. Albany Exch. Co. (3 Seld., 472), there was nothing left indefinite. The term was fixed at three years longer than that to which the lessee was bound. The rent for the extended term was, in the silence of the lease as to it, to be the same as for the first term. This was thus arrived at by implication of law from that silence. It was at the option of the lessee to take the premises for the three years longer, on the same terms as to rent and the payment of it. Nothing was left for the future to determine but the exercise of his

Opinion of the Court, per FOLGER, J.

option. Hyde v. Skinner (2 P. Wms., 196) is a decision somewhat favorable to the view of the plaintiff. The lease there contained a covenant “to renew the lease for such further term as the lessee should then desire.” This does not appear in the report in Peere Williams, but is so stated in the report as cited in 1 Harg. Jurid. Argumts., 426. (See 1 Hoff. Ch. R., 117, supra.) This case has however, been much criticised, and declared to be hardly an authority in any case. (Furnival v. Crew, 3 Atkyns, 88.) In Bridges v. Hitchcock (1 Bro. P. C., 522) the contention seems to have been whether the new lease should contain a covenant for a still further renewal. And it was so adjudged, principally as is to be gathered from the case, upon the ground that the lessee had made valuable improvements upon the demised premises, expecting a renewal from time to time as the term expired. And the same reason was stated for the decision in Hyde v. Skinner. It does not appear that the question now raised was had in consideration by court or counsel in either of those

It is to be noticed too, that in them, the covenant was to grant such further lease, or a lease for such further term, as the lessee should desire. This, as will appear further on, makes an important difference between them and the case in hand.

I am aware that the duration of the term may be reduced to certainty by matter ex post facto. Thus, it is said in Say v. Smith (1 Plowden, 269) if I make a lease to one for so many years as I. S. shall name, and afterward I. S. in my lifetime, names a certain number of years, it shall be a good lease tur so many years as he names; for it is my demise, and I am content that he should name the years, which by my own reference to his nomination, is as much as if I myself had named them. This instance is put in illustration of the general principle, stated in the same place, that every contract sufficient to make a lease for years, ought to have certainty in three limitations, viz.: in the commencement of the term, in the continuance of it, and in the end of it. So that (the authority continues) all these ought to be known at

cases.

Opinion of the Court, per FOLGER, J.

the commencement of the lease. So if the lease has a certain appointment of the number of years, although the commencement or the end of it is certainly appointed upon an uncertain time, yet such lease shall be good as a lease for years, after the lessee hath done such an act.

Now it may not seem that in principle, there is any distinction between a contract for a lease for so many years as I. S. shall name, and one for so many years as the lessee shall name. It may be that there is not. We are not here called upon to say how that is. The clause in the contract before us does not provide to that effect. By it the occupation is not for such further time after the expiration of the first term as the lessee shall name. He is not by it before or when he begins that occupation to name and specify the number of years for which he will continue as tenant. But the occupation is to run along without a determined continuance specified beforehand; and is for its duration, dependent all the while upon his choice or election, unexpressed as to a definite term thereof, so that it may continue indefinitely, and be arrested whenever he wills. It is similar to a provision for s uch time as both parties please (Bacon Ab., ut supra); or a lease giving a right to occupy as long as lessee pleases. (Doe v. Richards, 4 Ind., 374; Cheever v. Pearson, 16 Pick., 266.) And here is the difference above alluded to, in the case in hand from Hyde v. Skinner and Bridges v. Ilitchcock. A lease for so long as both parties shall please, or for so long as the lessee shall please, is said to be a lease at the will of both lessor and lessee. (Bacon Ab., supra; Doe v. Richards, supra.) It is at the most, a tenancy from year to year, so long as both parties please; for the courts do not willingly construe demises, where no certain term is mentioned, to be tenancies at will, and incline to hold them to be from year to year, especially where an annual rent is reserved. (Jackson v. Bryan, 1 J. R., 322.)

Moreover, when certainty of continuance depends upon matter ex post facto, that matter must occur in the lifetime of both the lessor and lessee (Rector of Chedington's Case

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