Smith v. Gulf Refining Co. ( 1936 )

OPINION

By LEVINE, J.

We are quite in accord'with the statement of counsel for defendant in error that the theory of holding over is never permitted to operate against the clear intention of the pa»ties to the contrary. We do not find from the record any such agreement to the contrary. The most that we find is that there was a request to that effect by a representative of the Refining Company, but such request was never acted upon.

When the Refining Company held over as it did beyond the life of the lease it became bound to the terms of the old lease. If the situation were reversed so that the Refining Company insisted on remaining an entire year dating from December 1. 1933, but plaintiff in error refused to acquiesce in such demand, we v.-ould hold that the position of plaintiff in error was untenable, after allowing the derendant in error to hold over beyond the term of the lease.

The parties became bound by the terms of the original lease to such an extent as if a new lease were executed embracing the same terms and covering one year from December 1, 1933.

The judgment is ordered reversed as contrary to law and the cause remanded for rroceedings according to law, and in accoidance with this opinion.

TERRELL, J, concurs. LIEGHLEY, PJ, dissents.