Judges： Clay
Filed Date： 12/2/1924
Status： Precedential
Modified Date： 10/18/2024
Opinion of the Court by
Reversing.
On October 15, 1915, G-. W. Ball leased to IT. L. Parsons a small tract of land lying on Martin’s fork in Harlan county. The material provisions of tlie contract are as follows:
“The 'first party agrees to lease to the second party for seven years from January 1st, 1916, for the sum of $15.00 per year. Second party agrees to pay to the first party $15.00 in advance the first of each year for the land for seven years.
“And at the end of seven years first party agrees to rent to tlie second party tlie same boundary of land alone for eight years longer at a reasonable price; if necessary the price of the rent shall be set by three disinterested men to say what the rent of the land is worth. Second party agrees to build a four-room house on the land and have the right to build any other buildings that he needs and at the end of time stated above written expires all buildings return back to the first party. Second party is to keep the road open as it is now.”
On March 27, 1923, Ball brought this suit against Parsons for a construction of the contract, and a determination of the rights of the parties under the contract. The petition proceeds on the theory that Parsons was not entitled to retain the premises for the period of eight years after the expiration of the seven-year period be
After the execution of the lease, Parsons built two houses on the land, and also drilled a.well, at the expense of several hundred dollars. According to Ball and-his witnesses Parsons permitted the houses to fall into decay, and it was necessary for Ball to expend $200.00 to put them in proper repair. On the other hand, Parsons’ evidence is to the effect that there was complaint only of the condition of one of the houses, and that he spent about $80.00 putting it in proper repair.
Ball’s evidence as to what occurred between the parties at the end of the seven years, is as follows:
“60. Did he make any effort at the end of the seven years to secure any arbitration to try to ascertain what would be a reasonable rental value of this land? A. He came around about the 1st of January and asked if I had not took possession too quick, and I told him no, and he said his lawyer said to come and offer me $15.00 to take it or leave it.
‘ ‘ 61. Did he make any tender of the $15.00 or just tell you that the lawyer said to offer it to you? A. He pulled it out of his pocket and offered it to me, and said his lawyer said for me to take it or leave it.
“62. Then he was asking you to permit him to fix the value of this property at $15.00 per year for another year, and said to you if you would not take that he would not give you anything? A. He said he would give $15.00 for the next year.
“15. I believe you stated that the defendant came to your house along about the 1st of January of this year and made you a tender of $15.00 per year for the payment for the succeeding year of 1923? A. Yes, sir, that is correct.
*796 “16. You didn’t tell him then, did you, Mr. Ball, that you wanted any more for this property? A. I told him I would not rent it until he fixed the houses.
“17. Did you tell him the property was yours and he could not have it? A. I told him that it fell back to me after the seven years.
“18. Did you say anything about leaving it to three disinterested parties as to what you should get for the rent of this property for the next eight years? A. He named it. Lee named it. I told him he was willing to it when he got them houses fixed up.
“19. He told you then that the houses was his? 'A. He said they was his and I told him they was mine according to the contract.”
On the other hand, Parsons tells what occurred in the following language:
“A. Yes, sir, on the first day of January of this year I went to hunt Mr. Ball up and see whether he wanted to lease the contract as before, or not, or what price he wanted to ask, if he wanted to ask more for it, or whatever he wanted to do, and I run across him and asked him if he wanted to re-lease the rent, and he said no, and I had $15.00 in my pocket, and I took it out and said here’s $15.00 for this year’s rent like I been paying, and he said I don’t want it. I owe you something like that, and run his hand in his pocket and pulled out $6.00 and gave me. We were saying something before that, but I don’t remember what was said exactly.
“62. About what? A. Before I made a tender to him of the money for the rent, he was saying something.
“62. You made tender to him of $15.00? A. I certainly did, and he said he didn’t want it, and I asked him something about what was he trying to take possession, I don’t remember exactly, anyway I said aren’t you taking possession too soon, and he said no.
“61. Was there anything else said; if so, tell what it was? A. I don’t remember how he did say it now; anyway he said he .thought that I had had the land long enough when I offered him the $15.00; I believe that was the way he spoke it.
*797 “65. What was your answer to that, if you made any answer. A. Why, I pulled out the contract and asked him to read that; that is the best I remember of what was ■ said.
“66. Well, did he read it? A. I don’t think he did, but his girl did; she read it twice, I think.
“67. What was said about the contract, if anything? A. About all that was said, I believe she read it twice, once or twice; I asked about reassessing the land and he said he had thought I had had it long enough.”
Our construction of the contract is, that any buildings which Parsons erected on the land were to become the property of Ball at the expiration of the seven years unless Parsons elected to re-lease the property for an additional period of eight years in accordance with the terms of the contract, in which event the houses were not, to become the property of Ball until the eight-year period expired.
The contract does not provide in terms for forfeiture of the leased premises, or of the lessee’s rights under the lease, in case he fails to keep the houses in proper repair, and as forfeitures are not favored in law, none will be implied. It follows that the lessee’s failure to keep the property in proper repair did not justify the lessor’s refusal to re-lease the property in accordance with the terms of the contract. On the contrary, if the lessee was under an implied duty to keep the property in repair, a question not now before us, his failure to perform that duty merely furnished the basis of a claim for damages, or of an action for equitable relief.
Having this view of the contract, it results that the lessee was entitled to a renewal or extension of the lease for the eight-year period, if he properly notified thelessor of his purpose to avail himself of the option. Both parties admit that the lessee came to the lessor on January 3, .1923, to see about a renewal of the lease. The lessor concedes that at that time the lessee spoke of leaving the matter to three disinterested parties and that he told the lessee “he was willing to it when he got them houses fixed up.” The lessee’s version of the affair is: “I asked about reassessing the land, and he said he had thought I had had it long enough.” Not only did this conversation take place between the parties, but the lessee, upon the refusal of the lessor to submit the mat
Judgment reversed and cause- remanded with directions to enter judgment in conformity with this opinion.