Opinion
No. 33769.
October 9, 1939. Suggestion of Error Overruled November 6, 1939.
LANDLORD AND TENANT.
Where one year lease gave lessee option to renew by giving 30 days' notice and provided that lessor should then either execute new lease or mark renewal on original lease, even if there was no renewal because of lessor's failure to deliver new lease or mark renewal on original lease after lessee had exercised option, lessee by holding over with consent of lessor became a "tenant from year to year" rather than a "tenant from month to month."
APPEAL from the circuit court of Harrison county; HON. L.C. CORBAN, Judge.
Albert Sidney Johnston, Jr., of Biloxi, for appellant.
It has long been the established law in Mississippi that the language of a lease (contract) is to be construed most strongly against the lessor.
Thomas Hinds Lodge No. 58, F. A.M. v. Presbyterian Church of Fayette, 103 Miss. 130, 60 So. 66; Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L.R.A. 1916E, 1227; Stuart v. McCoy, 163 Miss. 551, 141 So. 899; Edwards Hotel Co. v. Chambers, 141 Miss. 487, 106 So. 763.
In the instant case, may it please the Court, appellant was not a tenant from year to year, but a tenant under a written contract of lease for a period of one year, with the option at the expiration of said lease, provided notice of his intention was made thirty days prior to the expiration of the written lease for one year, to renew said lease for a period of twelve months. . . ., in which event lessor (appellee) was "thereupon" either to execute and deliver a new lease (in writing certainly), or mark "hereon" (on the original lease contract) his (lessor's) renewal for said period of twelve months.
A tenant holding over after the expiration of his written lease, which fixed the amount of rent, is only bound to pay the reasonable value of the premises for the time he holds over, without regard to the rent fixed in the lease.
Thomas v. Thomas, 69 Miss. 564, 13 So. 666.
It is the law in Mississippi, as declared in the case of Usher v. Moss, 50 Miss. 208, that where a tenant from year to year holds over, he is liable for another year, but I respectfully submit, is also the law in Mississippi, that a tenant under a written lease does not by the mere fact of holding over become a tenant for a like period as fixed in the original lease, and he is not liable for the rental fixed in the original lease, as held in Thomas v. Thomas, 69 Miss. 564, 13 So. 666.
Economy Stores, Inc., v. Moran (Miss.), 172 So. 865.
In the case at bar, may it please the court, the lease contract does evidence an intention of the parties to execute a new, written, lease; in fact it was incumbent upon appellee to execute a new, written lease, or endorse on the original lease the fact of renewal, before a lease contract for a second year could come into being, and failing so to do, appellant became a tenant from month to month, and he is not liable to appellee. The original lease contract of April 9, 1936, by and between appellant and appellee, gave appellant an option to renew, not an option of extension.
35 C.J., pp. 1025 and 1036; Thurston v. F.W. Woolworth Co., 66 Ind. A. 26, 117 N.E. 686; Goldberg v. Himlyn, 201 N.Y.S. 837; Economy Stores, Inc., v. Moran, 178 Miss. 62, 172 So. 865.
J.L. Taylor, of Gulfport, for appellee.
Appellant contends that because there was no new lease written and signed or that the lessor did not mark on the lease that it was renewed, his holding over was from month to month. In the case of Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, there is discussed the principles involved. The court says, "In construing a lease to determine whether it is a lease with an option of renewal, requiring notice of the intent of the lessee to renew before its expiration, or whether it is a lease with an option of extension, not requiring such notice, notice being implied by the tenant's remaining in posession after the expiration of the lease, unless otherwise provided, the court will consider the entire instrument, together with the facts and circumstances alleged in the bill." The court in this case also said that option of renewal and option of extension are substantially synonymous. In the case at bar it is alleged, and by the demurrer admitted, that the lessee gave notice of his intention to renew said lease, and thereby created another term of one year.
Where a lease conferring an option to renew omits to provide that he shall notify the lessor of his election to renew, a notice from him to his lessor of his intention to renew is not required. In such a case the lessee's merely remaining in possession after the term has expired is an exercise of the option to renew, and binds both him and his lessor for a new term.
Underhill, page 1377, Section 809.
Where the tenant continues to occupy and enters upon another year without objections from the landlord, and with his silence or tacit consent and approval, a tenancy for another year is thus created and cannot be terminated in the middle of the term.
Usher v. Moss, 50 Miss. 208.
We submit that no error has been committed, and that the case should be affirmed.
Argued orally by Albert Sidney Johnston, Jr., for appellant.
This is an action by the appellee for the recovery of rent. A demurrer to the declaration was overruled and the defendant declining to plead further, a judgment was rendered against him for the amount sued for.
The declaration alleges in substance that the appellant rented the property in question from the appellee, agreeing to pay therefor $45 per month for a period of one year, beginning the first day of May, 1936. The rental contract which was made an exhibit to the declaration provides: ". . . it is further agreed by and between the Lessor and Lessee that the Lessee shall have the option at the expiration of this lease, provided notice of his intention is made thirty days prior to its expiration, to renew said lease for a period of twelve months at and for the same rental and under the same terms, conditions and stipulations hereinabove mentioned, and that the Lessor will thereupon either execute and deliver a new Lease or will mark hereon his renewal for said period of twelve months."
The declaration further alleges: "That the defendant gave notice of his intention to renew said lease for a period of twelve months after the expiration of the lease, and continued to occupy said premises up until the month of December, 1937, paying the rental for the first seven months of said period. The defendant then vacated said premises without the consent of plaintiff and tendered plaintiff the sum of $45 in full settlement under said contract, which plaintiff declined to accept." The declaration does not allege that the appellant gave the notice of his intention to renew the lease "thirty days prior to its expiration," and, therefore, the appellant says, in the absence of the execution and acceptance of a new contract, the renewal feature of the lease did not become operative and that the appellant's continuing to occupy the premises after the expiration of the lease made him a tenant only from month to month thereof.
Assuming for the purpose of the argument that there was no renewal of the lease in accordance with its terms, nevertheless, by holding over after the expiration of his lease with the consent and acquiescence of the appellee, though without any new agreement therefor, the appellant became a tenant of the appellee from year to year. 35 C.J. 1101; Usher v. Moss, 50 Miss. 208; Richardson v. Neblett et al., 122 Miss. 723, 84 So. 695, 10 A.L.R. 272.
Affirmed.