Opinion
No. 36355.
March 10, 1947. Suggestion of Error Overruled April 8, 1947. Motion Overruled April 21, 1947.
1. LANDLORD AND TENANT.
Interlineation in printed form of lease for five years at monthly rental of $85 of provision for option to rent annually at a rent not to exceed $100 per month, provided for option to extend lease on increased rental basis for annual terms upon due notice.
2. APPEAL AND ERROR.
Trial court's finding upon sufficient evidence that notice of intent and purpose to exercise option to extend five year lease upon increased rental basis for annual terms had been established could not be disturbed on appeal (Code 1942, sec. 948).
3. APPEAL AND ERROR.
Whether under option provision in five year lease tenant was entitled to convert primary term into a demise upon an annual basis at any time before expiration of primary term was a moot question, where no attempt to do so was made.
ON MOTION. (Division B. April 21, 1947.) [30 So.2d 83. No. 36355.]1. APPEAL AND ERROR.
On Supreme Court's affirmance of judgment against landlord, tenant was not entitled to remand of the case so that trial court might fix the value of the land and for an award of statutory penalty for an unsuccessful appeal, where tenant made no claim that he owned the land and contended only that he had a right to renew the lease thereon (Code 1942, secs. 947-958, 1971).
2. APPEAL AND ERROR.
Where tenant elected value of land leased as basis of his motion for remand after affirmance by Supreme Court of a judgment in his favor, for purpose of assessing statutory penalty for an unsuccessful appeal, and such basis was unsupportable because tenant made no claim that he owned the land, motion was required to be overruled (Code 1942, secs. 947-958, 1971).
APPEAL from the circuit court of Hinds county. HON. H.B. GILLESPIE, J.
Howie, Howie McGowan, of Jackson, for appellants.
The appellee lost his rights to remain on the property for failure to timely exercise his option.
Copiah Hardware Co. v. Johnson, 135 Miss. 358, 100 So. 31; Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L.R.A. 1916E, 1227; Burge v. Purser, 141 Miss. 163, 106 So. 770.
The contract of rental was clearly a contract for renewal or a new lease, and in no sense a contract for extension, and the tenant's remaining in possession was not notice to appellant.
Crenshaw-Gary Lumber Co. v. Norton, supra; Copiah Hardware Co. v. Johnson, supra; Burge v. Purser, supra.
The inserted clause in the lease rendered the same void for uncertainty and the appellants were justified in asking for the property at the end of the five year term.
Harold Cox, of Jackson, for appellee.
The appellants, as landlords, executed a written lease covering the premises in suit for the period beginning March 1, 1941, and ending March 1, 1946, at $85 per month. The lease had written therein in the handwriting of one of appellants, "Option to rent annually at a rent not to exceed $100.00 per mo." On March 1, 1946, appellee sent appellants his check for $100 as the maximum rent for the first month of the extended term. The check was marked "March rent." The check was returned by letter dated March 5, instructing appellee to vacate the premises. Appellants declined to accept the check and instituted this proceeding on the theory that appellee did not do that which he was obliged to do to extend said lease. The county judge heard the appellant's evidence on their affidavit and appellee's evidence on his affidavit of defense thereto and dismissed appellant's suit. The appellants appealed to the circuit court, where the judgment of the county judge was affirmed. The sole question presented here is as to whether or not in March, 1946, the appellants or the appellee were entitled to the leased premises.
As a general rule in construing provisions relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter, having the power of stipulation in his own favor, has neglected to do so, and also upon the principle that every man's grant is to be taken most strongly against himself.
32 Am. Jur. 809, Sec. 962.
Where a lease is for a stated term with the privilege to the lessee of extending the term for a further period, and contains no provision for notice to the lessor of the lessee's election so to extend the term, the lessee is not required to give express notice to the lessor before the expiration of the first period of his election to extend the term. His holding over constitutes or evidences an election on his part to take the extension of the lease.
Carter Building, Inc., v. Talliaferro (Miss.), 107 So. 377; Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140; Dowling v. Smyley, 150 Miss. 272, 116 So. 294; Economy Stores, Inc., v. Moran, 178 Miss. 62, 172 So. 865; 32 Am. Jur. 820, Sec. 976.
The same sureties executed the bond on appeal to the circuit court who executed the bond as sureties on appeal to this Court, and the bond is in such respect a nullity and without sureties here.
Jayne v. W.B. Nash Lumber Co., 108 Miss. 449, 66 So. 813.
Affidavit was filed in the County Court by the appellant as landlord, under Code 1942, Section 948, to remove appellee as a tenant. The tenant set up the lease as granting an option to extend the term.
The lease was upon a printed form and demised the premises for a term of five years from and after March 1st, 1941, at a monthly rental of $85.00. The landlord by pen interlineation added the words here italicized, "To hold for the term of 5 years from 3/1/41 to 3/1/46 with option to rent annually at a rent not to exceed One Hundred dollars per mo." The issue is to be resolved by a construction of the language. The action was dismissed by the County Court and upon appeal to the Circuit Court the judgment was affirmed.
Assumption that the amendment had some purpose and meaning may safely be indulged. The interpretations discussed in the briefs are that the contract provided for (1) a renewal by a new lease, or (2) an automatic extension by timely exercise of the option. Further the term of the extension is considered as (1) a privilege to convert the lease from a five year primary term into one renewable annually at an increased rental, or, (2) an option to extend the lease for one year, or, (3) an option to extend the lease indefinitely upon annual rents.
We are of the opinion that the lease provides for an option to extend the lease upon the increased rental basis for annual terms upon due notice. There is no requirement for the execution of a new lease. The trial court found upon sufficient evidence that notice of an intent and purpose to exercise the option had been established. See Carter Building, Inc., v. Talliaferro (Miss.), 107 So. 377; Economy Stores, Inc., v. Moran, 178 Miss. 62, 172 So. 865. We can not displace his finding.
We need go no further than a finding that the trial court was correct in dismissing the ouster proceedings regardless of an interpretation of the nature and extent of the extension. Yet an interpretation of its meaning is inevitable in reviewing the former judgments. Whether the lessee could have converted the primary term into a demise upon an annual basis at any time prior to March 1st, 1946, is now moot since no attempt to do so was made. The only justiciable question is as to the right obtained by timely notice to extend the primary term. The right to "rent annually" is inconsistent with a right to rent for one year, as well as the right to extend the lease for an additional five year period. Compare Dowling v. Smyley, 150 Miss. 272, 116 So. 294; 32 Am. Jur., Landlord and Tenant, Sec. 958, p. 807.
We have examined the other points raised by the appeal, including the sufficiency of the appeal bond. Authorities supporting the trial court's judgment include Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369; Crenshaw-Gary Lumber v. Norton, 111 Miss. 720, 72 So. 140, L.R.A. 1916E, 1227; Carter Building, Inc., v. Talliaferro, supra.
Affirmed.
ON MOTION.
Appellee, the tenant, was proceeded against in the special tribunal, Secs. 947-958, Code 1942, by his landlord who alleged "that the tenant was holding over." A judgment in favor of the tenant was affirmed by this Court, and he now presents a motion to remand the case so that the trial court may fix "the value of the land in suit" and for the award of the statutory penalty of five per cent thereon as a penalty for the unsuccessful appeal, Sec. 1971, Code 1942. Appellee relies on Hodges v. Jones, 197 Miss. 107, 116, 19 So.2d 518, 917.
In that case the tenant contended that he was the owner of the land under a contract to purchase, and the court held that on that account the value of the land was the proper basis for the measure of damages on affirmance. In the present case the tenant made no claim that he owned the land or had any right to its ownership as land, his contention being no more than that he had a right to renew the lease thereon. The damages, if any, in a case such as this are not to be measured on the value of the land, and as appellee has elected that value as the basis of his motion, it must be overruled.
Motion overruled.