said lease, on the 1st day of April, 1897, and hereby notify you that said lease shall terminate on that day."

The holding of the appellate division was reversed by the court of appeals; the court saying, in part:

"The only defect claimed in the notice is that it does not contain an express promise to pay for the buildings at their appraised value. The learned appellate division appears to have been of the opinion that the lease prescribed the form of the notice and that the promise to pay was a part thereof. We incline to the view that the wording of the lease does not justify such a conclusion. By it the parties agree that, in case the landlords do not give six months' notice in writing of their election to take possession of the demised premises at the expiration of the lease and pay for the buildings, vaults, and sidewalks at the appraised value, they will renew and continue this present demise and lease, etc. This does not purport to prescribe the form of the notice in hæc verba, but only gives the substance. Upon referring to the notice it will be seen that the owners elect to take possession of the premises, 'pursuant to the provisions of said lease,' so that if, under the provisions of the lease, they are required to pay for the buildings, they take possession under the promise to pay therefor. It appears to us that this is a substantial compliance with the terms of the lease and answers every requirement of the notice." Matter of Coatsworth, 160 N. Y. 114.

If it should turn out that the notice was not given in good faith, with an actual intention to rebuild, the rights of defendants will be fully protected under this interpretation of the notice.

The judgment is affirmed.

MONTGOMERY, HOOKER, MOORE, and MCALVAY, JJ., concurred with BLAIR, C. J.

OSTRANDER, J. (dissenting). The owner of premises leased them for the term of three years from August 1, 1904, for the sum of $2,160, payable at the rate of $60 per month, in advance. The lessees covenanted that, "at the end of said term, they shall and will peaceably and

quietly leave, surrender and yield up the said premises unto the said party of the first part, her heirs and assigns." The lessor covenanted for herself and her heirs and assigns that if the parties of the second part paid the rent reserved in the manner provided, and performed all covenants made by them, they might enjoy and possess the premises for and during the term aforesaid. Lessees covenanted that they would not assign the lease or sublet any part of the premises without the written assent of the lessor. In the body of the lease is the following provision:

"And the said parties of the second part at the end of the said three years may have the privilege of renewing this lease at the same rental for so long a term as said parties of the second part may see fit, upon the same terms and conditions as in this lease contained, with this exception: That on and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days' notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease."

The vendee of the lessor on May 29, 1907, served upon one of the lessees and upon a sublessee a notice, which reads:

"To JOHN KERREOS and PETER ELLIS:

"Please take notice that you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described, which you now hold of me, as my tenant, on or before the first day of August, A. D. 1907, for the reason that I intend to terminate your tenancy, and to repossess the whole of such premises on the date above mentioned, said premises being described as follows, to wit: The store No. 303 Woodward avenue, in the city of Detroit, county of Wayne and State of Michigan. This notice is given in accordance with a provision contained in a certain lease of said premises made and

executed by one Elizabeth H. Cady to the said John Kerreos and Peter Ellis.

"H. H. STENDER. "Dated at Detroit, Wayne county, Michigan, the 29th day of May, A. D. 1907."

On or about July 27, 1907, the tenants gave the owner the following notice:

"Mr. H. H. STENDER,

"City.

"July 27, 1907.

"Dear Sir: The lease of the store, 303 Woodward avenue, Detroit, Michigan, which we hold, expires on the first day of August next. Under the provisions of said lease we have the privilege of renewing said lease at the same rental for so long a term as we may see fit, upon the same terms and conditions as in said lease contained, and we therefore hereby give you notice that we demand a renewal of the lease, dated the 14th day of September, A. D. 1904, in which Elizabeth H. Cady is mentioned as the party of the first part, for the store known as 303 Woodward avenue, Detroit, Michigan, for the term of fifty years from and after August 1, A. D. 1907, according to the provisions under our present lease. We give this notice to you for the reason that we understand that you have purchased said property from Elizabeth H. Cady, and are now the present owner. You will kindly have a renewal made out for us to sign.

"JOHN KERREOS and PETER ELLIS."

The owner, on August 2, 1907, instituted summary proceedings to recover possession of the premises. The plea of the defendants was "not guilty," and the special defense set up was that the notice to quit was insufficient and void because it did not conform to the notice required to be given by the lease, it did not state that the intention was to rebuild upon the premises, it was prematurely given, and was given by the owner of the property and not by the lessor. Defendants appealed from the judgment of the circuit court commissioner to the circuit court for the county of Wayne, in which court a verdict for the complainant was directed by the court. The evidence

was that the complainant bought with notice of and subject to the rights created by the lease, and that the tenants had attorned to him. The testimony for complainant tended to prove that the subtenant was in by virtue of the consent (whether written or oral does not appear) of the original owner; on the part of defendants, that they were not in arrears for rent. The contentions of the lessees, appellants, have been sufficiently indicated. On the part of the appellee it was and is contended: (a) That the covenant to renew the lease is void for uncertainty; (b) that the lease expired by its own terms; (c) that the notice given is a sufficient notice of a wish to rebuild. There was no testimony, aside from the notice given to the tenants, tending to prove a desire or intention on the part of the owner to rebuild.

The agreement is that the lessees, if they do whatever is stipulated to be done by them, shall enjoy the premises for a term of three years from August 1, 1904. At the end of this term they may, at their election, enjoy them for a further term, the duration of which they may nominate, paying the rent, and upon the occasions, stipulated in the lease. Fairly interpreted, the provision for a renewal of the lease does not mean that the lessees, upon the expiration of the fixed term, may continue to occupy the premises for an indefinite period, or at their will. Nor is it to be supposed that the parties to the lease contemplated that the tenants should relinquish possession at the end of the three years, take a new lease and immediately re-enter. The intention of the contracting parties, gathered from the whole instrument, is to make a present agreement for an additional or further term to begin in the future, requiring only lapse of the preceding term and the election of the lessees to become a lease in præsenti. There is no rule which requires courts, notwithstanding the evident intention of parties, expressed in fitting terms, to construe a clause such as is in question here as a mere covenant for a lease or for the renewal of a lease. No one would doubt that, if the duration of the second or fur

ther term had been fixed in the lease, it would be held to be a present demise of the premises for both terms, although the tenants reserved the right to elect whether or not the second term should begin at all. Delashman v. Berry, 20 Mich. 292; Beller v. Robinson, 50 Mich. 264; Brown v. Parsons, 22 Mich. 24; Darling v. Hoban, 53 Mich. 599; Brand v. Frumveller, 32 Mich. 215; Cooper v. Joy, 105 Mich. 374; Wright v. Kaynor, 150 Mich. 7. See, also, Wallace v. Bahlborn, 68 Mich. 87, 89, 90. The fact that the duration of the second term is not fixed in the lease, and is to be fixed by the lessor, does not call for the application of a different rule.

Assuming, as we must, that the property is demised by the written lease for a term and for a further term, is the contract legally infirm? If there is an infirmity, it must arise out of the fact that the duration of the term was, when the contract was entered into, uncertain. For that matter, it was uncertain whether there would be a second term. So in Brand v. Frumveller, supra, and in Brush v. Beecher, 110 Mich. 597, it was uncertain what rent would be demanded during the second term. In those cases the amount of the rent was to be determined by arbitrators, to be chosen by the parties. There was a mutual undertaking to make the uncertainty certain if a further term was entered upon by a designated method. It was not supposed that the uncertainty avoided the contract. Here the commencement of the second or further term is made certain by the lease. It is the demise of the owner who is content that his lessees shall make the duration of the term certain. There is no want of mutuality. Fairly construed, the contract is that, when the election to hold for a further term is made, which must be before or immediately upon the termination of the three years' term, there must be also a fixing of the duration of the term to be made known to the lessor. The owner so understood it, as is evidenced by the notice which he served. The lessees so understood the meaning and acted in con