Griffin Grocery Co. v. McBride , 217 Ark. 949 ( 1950 )

On Motion for Rehearing.

Per Curiam.

In a petition for rehearing the appellant insists that it is the proper party plaintiff for the reason that it did not execute its deed to Gregory until January 3, 1949, after the lease had been terminated by notice to the lessee in the preceding November. But the pivotal date is that on which the lessee surrendered possession, because the lessee could have complied with its covenant by restoring the building to its original condition at any time before giving up possession. Even though the appellant attempted to regain possession in November it is undisputed that the tenant did not in fact relinquish possession until February 1, 1949. Hence any cause of action that might then have arisen could not have been vested in the appellant, since it had already sold the property to Gregory.

Rehearing denied.