| Ark. | Jan 10, 1910
(after stating the facts:)
“For the term of five years from and after the first day of September, 1903, with the privilege on the part of the said lessee to occupy the said building for five years longer upon the same terms and conditions as herein described, but the said lessee shall give the said lessor sixty days’ notice if he so desires to occupy said building.”
When the five years expired, the lease for that term was at an end. But appellant had the privilege of occupying the building on the same terms and conditions, provided he complied with the condition to give notice. As we construe the contract, this 'condition as to notice was a condition precedent to another lease upon the same terms and conditions for a period of five years. The language of the stipulation as to the sixty days’ notice was such as to make time of the essence of the contract, so far as obtaining a further term of lease for five years is concerned. Until this condition precedent as to notice was complied with, no rights vested in appellant to occupy the premises for another five years under the same terms and conditions that he was then occupying them. A court of equity can not make contracts for parties, and cannot be invoked to compel parties to make contracts. Here there was no contract for an additional term of five years until the notice was given. The forfeiture here, if it be proper to call it such, was not of rights under a contract entered into for another -term of five years, and because of a breach of some condition subsequent, but the forfeiture was of the right to continue to occupy the premises for another term of five years because of a failure to comply with a condition precedent. The appellant had no leasehold estate in the premises for a new term of five years, nor -the right to have such created, until he had given the notice required by the lease contract. Where the condition must be performed before the estate can commence, it is called a condition precedent; but where the effect of it is either to enlarge or defeat an estate already commenced, it is called a condition subsequent. The former avoids the estate by not permitting it to vest until literally performed. Taylor on Landlord & Tenant, § 27.
The appellant had the option or privilege, upon complying with the terms of the lease contract as to notice, of a further term of five years. The covenant bound the lessor to grant the lessee the further term upon notice given, but it did not bind the lessee to give the notice. In such case, “if notice is stipulated for, it must be given.” “From the nature of a condition,” says Mr. Taylor, “it is obvious that equity cannot relieve from the forfeiture of an estate which arises’upon a condition precedent unperformed.” Taylor, Landlord & Tenant, § 277; 1 Pom., Eq. Jur., §. 455.
There is no analogy in the case at bar to cases where equity, for sufficient cause, intervenes to prevent a forfeiture of existing contract for breach of its terms.
The answer contained no allegation that ¡called for the interposition of a court of equity. The chancellor therefore did not err in overruling the motion to transfer. Furthermore,' the contract did not require the notice to be given through the mails. Any other method of 'giving the notice to the lessor would have been sufficient. The accident, so called, of a failure to get the notice to the lessee by letter was not unavoidable. Appellant voluntarily selected this method. He could have avoided the miscarriage of the letter through the mails by not using the mails and by giving the notice some other way.
The attempt to give the notice by letter was not a mistake on the part of appellant. Pie intended to give it this way, but he knew he could give it orally or by sending notice through a messenger, or officer. He chose the mails. This was not a mistake at all, or, if so, certainly not one that a court of chancery will correct. It was the duty of appellant under the contract to give the lessor notice. Nothing short of the information which the contract specified, communicated in some manner to the lessor, would fulfill the requirements of the law. Appellant, having choice of a number of agencies to make the communication, is responsible if through the agency chosen he fails to make it. The failure in such case is but the failure at last of the one making the selection of methods, and equity can not relieve from the consequences of such failure on the ground of accident or mistake.
The answer, from any viewpoint, did not call for the interposition of a court of chancery.
The evidence on behalf of the appellees was to the effect that no letter containing notice of appellant’s intention to take the premises for the further period of five years was received.
Where a letter has been properly mailed, the law raises a presumption that it was duly received by the person to whom it was addressed, but, as was said by the Supreme Court of the United States in Rosenthal v. Walker, 111 U. S. 193, “the presumption so arising is not a conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty.” As was declared by our court in Planters Ins. Co. v. Green, 72 Ark. 305" date_filed="1904-03-19" court="Ark." case_name="Planters' Mutual Insurance v. Green">72 Ark. 305, “the presumption, in the absence of evidence to the contrary, is that it was received, but this presumption may be rebutted.”
The evidence showed conclusively that the letter was not received, but nevertheless the court submitted ‘the question to the jury to determine from all'the evidence, instructing them properly as to the presumption of delivery that arises in the usual course of business connected with the proper mailing of a letter and the handling of the same by the officers of the government, and charged the jury that the burden was on the appellees to overcome this presumption by a preponderance of the evidence. The court thus gave appellant .the benefit of this presumption of delivery as evidence in the .case, and conformed its charge in this respect to the rule announced in the above cases.
There was evidence on behalf of appellant tending to show that some time in July, after he thought the notice had been received by appellees of his intention to occupy for another term of five years, he met Mrs. Atkinson on the street and “mentioned to her about putting in the-front'the same as the Grand header front” to the store. It would, have taken some time to put in -this front, and appellant intended to put the improvements in some time in September or October, 1908. He did not say anything about the lease because he thought his letter had reached Mrs. Atkinson. She “did not at that time mention that she had not received the letter.”
Upon this evidence appellant predicates error iii the refusal of the court to grant his prayers seeking to have the question of waiver and estoppel submitted to the jury.' There was nothing in the above testimony to constitute an estoppel against appellees, nor to show that "the notice'required'by the’ contract was waived. On the contrary, the court correctly instructed the jury that Mrs. Atkinson, under the evidence, was not required to do anything in the matter, and had a right to remain silent regarding it if she chose. If she had done or said anything prior to the time for giving the notice, or after it should have been given, showing that she waived it, the case would have been different. She did not receive any rents after the lease expired, nor did she do or say anything whatever at any time that would show an intention to waive her rights under the lease, nor. to estop her from maintaining this suit for the possession of the premises and damages for the unlawful detention thereof.
The judgment is affirmed.