Copiah Hardware Co. v. Johnson , 135 Miss. 358 ( 1924 )

Ethridge, J.,

delivered the opinion of the court.

Mrs. Serena Johnson and Brittian & Henry entered into a lease contract for a two-story brick building situated in Hazlehurst, Miss., on the 22d day of September, 1917. Said contract read as follows:

“State of Mississippi, County of Copiah.

“This contract and lease made this the 22nd day of September, 1917, by and between Mrs. S¿rena Johnson, party of the first part, and Brittain & Henry, parties of the second part, witnesseth:

“That the party of the first part has this day rented and leased to the parties of the second part the two-story brick building owned by the party of the first part, and situated on the south side of Estelle street in the city of Hazlehurst, for one year from the 1st of November, 1917, at a monthly rental of forty ($40) dollars per month, with the privilege and right of the parties of-the second part or their assigns to renew this lease for one year at a time before or after November 1, 1918, as long as they may desire' to do so, at the same rental as aforesaid and on the same terms and conditions embraced in this lease.

“It is understood and agreed that the party of the first part will repair the floor of the said building and put it in good condition at once and also put good substantial window shutters to all the back windows of said building and take out fire place and mantel now in said building and fix the rear doors in a substantial manner, and also will paint the front of said building inside and out, and will hereafter keep said building in good repair as long as occupied by said parties of the second part or their assigns.

“The party of the second part shall have the privilege of taking out the platform or substory in the rear end of said building, and to make any additions and improvements and shelving in said building that they may desire, and to remove said improvements and shelving, etc., whenever they may desire.

“Witness the signatures of said party of the first and second part this the 22nd day of September, 1917.

“[Signed] Mrs. Serena Johnson.

“[Signed] Brittian & Henry.”

On the 15th day of April, 1918, Brittian & Henry transferred this lease to the Copiah Hardware Company • said assignment being in the following words:

“Whereas, the firm of Brittian & Henry has transferred and conveyed all of its stock of goods, wares and merchandise and business conducted in Hazlehuist, Mississippi, to the Copiah Hardware Company, a corporation organized, and as a part of the consideration for transferring and conveying the stock of goods as aforesaid, the firm of Brittian & Henry agreed and promised to transfer and assign its lease of the building occupied by it in the conduct of its business.

“Now, therefore, in consideration of the fact above stated, and further consideration of one dollar cash in hand paid, we, the firm of Brittian & Henry, hereby transfer, assign, and convey our lease and all rights and priviliges thereunder to the building which has been recently occupied by us, it being the purpose hereby to convey and transfer all the rights, powers, and privileges which we ourselves obtained and hold under a certain contract entered into between ourselves and Mrs. Serena Johnson on September 22, 1917, with reference to the rental of the store building owned by her on the south side of Estelle street in the city of Hazlehurst.

“Witness our signatures this the 15th day of April,

1918. [Signed] Brittian & Henry..

“A. Henry.”

On the 26th day of October, 1918, the Copiah Hardware Company notified Mrs. Johnson by letter of their intention to renew the lease for one year from the 1st of November, 1918; said letter reading as follows:

“October 26, 1918.

“Mrs. Serena Johnson, Hazlehurst, Miss. — Dear Madam : On the 15th day of April,' 1918, the Copiah Hardware Company purchased and had assigned to it the lease of the store building which you had made to Brittian & Henry of Hazlehurst, Miss., a copy of the said lease, we hand you herewith.

“Under the provisions of your lease contract, we, as the assignees of the said firm of Brittian & Henry, have the right to renew our lease for the said building from year to year by giving you written notice of our intention on or before November 1st annually.

“This is to give you notice, therefore, that it is our intention and desire hereby to renew the said lease contract according to its terms and provisions, for one year from November 1, 1918, and as much longer thereafter as we may choose, according to the terms of the said contract.

“Tours very truly,

“[Signed] Copiah Hardware Company.”

On October 10, 1919, the said Copiah Hardware Company notified Mrs. Johnson of their intention to renew the lease on said building for another year beginning November 1, 1919, and extending to November 1, 1920, the renewal to be in strict accordance with the terms of the original lease contract. On November 1, 1920, appellant gave Mrs. Johnson notice by letter that they expected to renew the contract for the rental of said building for another year, “beginning November 1, 1920, and extending to November 1, 1921. The renewal to be in strict accordance with the terms of the contract referred to above.”

On October 17, 1922, the appellant mailed to the ap pellee another letter giving notice of their intention to renew the contract for the rental of the said building for another year, “beginning November 1, 1922, and extending to November 1, 1923. The renewal to be in strict accordance with the terms of the contract referred to above. ’ ’

The appellant failed to give the appellee notice on or before the 1st day of November, 1923, but let that date pass without such notice of renewal, but a letter was posted on November 6, 1923, addressed to the appellee, giving notice of their intention to renew. The manager, of appellant says that he thinks he wrote the notice on the night of the 2d of November, and thinks he mailed the letter that night. He also testified that at the time of writing such notice he had knowledge that suit was going to be filed before he sent such letter. On the 8th day of November, 1923, the appellee, Mrs. Johnson, made affidavit before a justice of the peace “that the Copiah Hardware Company, tenant, after the expiration of its term and without permission of this affiant, owner, and lessor, holds and refuses to deliver possession of the following described premises.” The appellant filed the following plea or answer to such proceeding before the justice of the peace:

“Now comes the Copiah Hardware Company, defendant, and in answer to the affidavit of Mrs. Serena Johnson denies that it is holding said premises over after the expiration of their term, but asserts that it is holding said premises under a legal and valid contract and the right of renewal and extension thereunder, all of which have been construed and upheld by the supreme court of the state of Mississippi.”

The case referred to in which the contract was construed is Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369, in which decision the court held that the original lease was a valid contract, and that under it the appellant had a right to renew the lease by giving the proper notice for one year at a time as long as they might desire to do so. The appellee proceeded under the provisions of section 2383, Hemingway’s Code (section 2885, Code of 1906), the pertinent part of which reads as follows:

“A tenant or lessee at will or at sufferance, or for part of a year, or for one or more years, of any houses, lands, or tenements, and the assigns, under-tenants, or legal representatives of such tenant or lessee, may be removed from the premises by any justice of the peace of the county, or by the mayor or police justice of any city, town, or village where the premises, or some part thereof, are situated, in the following cases, to-wit:

“First. — Where such tenant shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord,” etc.

Section 2380, Hemingway’s Code (section 2882, Code of 1906), provides that “notice to quit shall be necessary only where the term is not to expire at a fixed time. ’ ’

It is the contention of the appellant that this section is not applicable to the present case, and that the lease contract did not expire at a fixed time, and the fact that the tenant remained in possession for eight days after November 1st - before proceedings, were instituted, was a holding over for another annual term. The appellant also contended that the contract gives the right of an extension of lease as distinguished from a renewal of lease, and that the case of Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L. R. A. 1916E, 1227, is authority for that position. In that case the court discussed the principles of the necessity of notice in the one ease and the absence of the necessity of such notice in the other, and held in the case before it then, taking all of the facts into consideration, that the notice was not necessary. The case, however, announces the rule to be that, if it is a renewal contract, notice must be given of the intention to renew before the expiration of the term or while the term, of the lease is still in force, but in the case where the option is for the extension of the lease that such notice need not be given, but the tenant may continue in possession, and the fact of possession will evidence its intention to exercise the option of extension.

The contract before us gives the lessee the right and privilege, or their assigns the right and privilege, “to renew this lease for one year at a time.” The option given is to renew the lease. It is not a lease for a term with right to hold over as long as the party may desire, or for a stated period, but is a right to renew the lease for one year at a time. The original lease was for one year from the 1st of November, 1917. Consequently the lease expired November 1,1918, and the new lease began on that date under the letter above quoted giving notice to that effect prior to the 1st day of November, 1918. The letters subsequent to November 1, 1918, stipulate the beginning and ending of the term. Consequently each term began and ended at specified dates. Consequently, under the terms of section 2380, Hemingway’s Code (section 2882, Code of 1906), no notice to quit or vacate was necessary, and the lessor had the option to treat the tenant as a trespasser after that date. The views here expressed find support in McClintock v. Joyner, 77 Miss. 678, 27 So. 837, 78 Am. St. Rep. 541. The circuit court granted a peremptory instruction for the appellee, and entered judgment thereon in favor of the appellee, which judgment is in accordance with the 'views herein expressed and must be affirmed.

Affirmed.