McKeithen v. Bush , 201 Miss. 664 ( 1947 )

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 toexceed 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.