Burge v. Purser

106 So. 770 | Miss. | 1926

^* Corpus Juris-Cyc. References: Landlord and Tenant, 35 C.J., p. 1019, n. 34 New, 38. The appellee leased from the appellant for a period of one year a filling station located on property owned by the appellant. The lease was in writing and sets forth, among other things, that — "The party of the first part agrees to rent to the party of the second part the filling station located on the lot of H.T. Burge for a period of twelve months beginning July 1, 1924, and ending July 1, 1925, at a monthly rental of eighty-five dollars per month payable in advance, with the exception of January and February, which is to be rented for the sum of fifty dollars per month, payable in advance, and the party of the second part has delivered to the party of the first part twelve rent notes, ten of which are for eighty-five dollars per month and two for fifty dollars per month. It is understood and agreed that should the party of the second part fail to pay any note when due, the party of the first part shall have lawful right to take possession of said filling station without any further notice from the party of the first part to the party of the second part, but it will in no way affect the right of the party of the first part to collect all unpaid notes."

Below the signatures to the lease is the following unsigned memorandum:

"Party of the second part has the privilege of releasing said filling station for a period of four years after the expiration of this lease with the exception of January and February rent, rent will be the same as all other months as stated above."

Prior to the expiration of the year for which the property was leased, the appellee notified the appellant, in writing, that he would exercise his option to release the property, but did not tender to the appellee his promissory notes for the rent to be paid by him each month. The appellant declined to permit the appellee to remain on the property after the expiration of the year for which it had been leased, and was proceeding to lease it to another when appellee sued out a writ of injunction in the court below on an original bill setting up the appellant's claim to the right under the lease of remaining on the property for four years. No offer was made in this bill by the appellee to execute and deliver to the appellant his notes for the rent to be paid by him each month. He did offer by an amendment to the bill to pay the rent monthly in advance. On final hearing the injunction was made perpetual on condition that the complainant "pay to him on or before the first day of each and every month during said period of time the sum of eighty-five dollars monthly rental in advance."

Assuming the validity of the stipulation for the renewal of the lease and that the appellee had the right thereunder claimed by him to release the property upon the same terms and conditions set forth in the original lease, it was necessary for him, in order to avail himself of that right, not only to notify the appellant that he intended to release the property, but also to tender the appellant his promissory notes for the rent to be paid by him each month, and since he failed to do this, the appellant was not in default in declining to release the property to him.

Reversed, and bill dismissed.