The language used in this lease providing that the lessee is given the option to “renew and extend” it by the giving of written notice to the lessor “of such renewal,” that it shall be “renewed annually in this same manner,” and that the rentals for all “renewals or extensions” under the option shall be payable on the same date of each year of such “renewal or extension” is inexact, for “renewal” contemplates the execution of a new contract, whereas “extension” does not.
Citizens Oil Co. v. Head,
If this lease provides for a renewal—the obtaining of a new contract each year—the position of the lessor that the lessee’s *230 failure to obtain one resulted in his occupying the status of a tenant at will would appear to be correct, whereas if an extension is what the contract provides for we would/ for reasons which will appear, conclude that his status continued to be that of a lessee each year. What, then, does the language “renew or extend” as used here mean? What is its effect?
A lease contract is construed against the lessor, unless it was prepared by or its terms were dictated by the lessee.
Felder v. Oldham,
In
Hamby v. Georgia Iron Co.,
Notice was not specifically provided for in
Hamby
or in
Scruggs,
but this lease does provide that if the lessee is to exercise his option to “renew and extend” he must give written notice of his intention to do so and execute a new note for the rental before December 1 of each year. Does this require that we reach a different conclusion than was reached in
Hamby
and
Scruggs?
It would unless we can conclude that the lessor has waived the notice provision or that she is estopped from relying on it. She permitted the lessee to give his note for the rental, to continue in occupancy and pay the taxes on the land for the years 1963, 1964, 1965 and 1966. When the note became due it was paid each time and she accepted the money. All of this was without the giving of any written notice by the lessee that he was exercising the option. It does not provide for any new terms or renegotiation of terms in “renewing or extending.” See
Saunders v. Sasser,
The construction placed upon the lease, as evidenced by the conduct of the parties, is to be considered. Asa
G. Candler, Inc. v. Georgia Theater Co.,
*232
rather than a renewal of the old lease? It does. The tenant was permitted to give his note for the rental, as called for by the old lease, on December 1 of 1962, 1963, 1964 and 1965, to occupy and use the lands in the same manner as had been done during the original term, to execute his note for the annual rental the payment of which lessor has accepted, to pay the taxes as had been done for the original term—all without the execution of any new lease. The tenor of the whole instrument is that if the tenant gives the notice of intention and executes a rental note for the same amount each year, he is entitled to continue the use and occupancy of the land
on the same terms
for another year, and the parties have so treated it. The effect of what they have done since the expiration of the original term is to extend the time or term of the lease.
Lanham v. McWilliams,
Code § 20-116 provides that “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.” This Code section applies to the situation here, and when the lessor accepted the rent note, allowed the tenant to continue occupancy of the premises and to pay the taxes during the four years following expiration of the original term without requiring the written notice of intention, there was a temporary mutual departure from that'provision and a quasi new agreement which did not require the notice. Consequently, the rulings in Hamby and Scruggs apply to this situation.
The notice which Mrs. Chalkley, the lessor, gave to Ward, the tenant, that his lease had terminated and that she desired him to quit the premises at the end of 1966 was grounded on the failure of Ward to give written notice in 1962 and each year thereafter, before December 1, of his intention to renew or extend for the following year. While this notice does not say to the tenant that she is thereafter requiring strict adherence to *233 the terms of the lease, it certainly is sufficient to let the tenant know that it is her intention. Accordingly, and before December 1 of 1966 the tenant gave the written notice called for by the lease and executed to the lessor his note for the 1967 rental. The lessor having terminated the temporary mutual disregard! of the notice provision, the tenant complied by giving it.
Moreover, by acceptance of the rent notes in 1962, 1963, 1964 and 1965 Mrs. Chalkley waived the right to declare a forfeiture on account of Ward’s failure to give the written notice of his intention to extend the lease. By this act she admitted the continuance of the lease and waived any prior forfeiture.
“A
landlord who recognizes a lease as a subsisting, operative contract should not, in equity or in good morals, be permitted to insist upon a past forfeiture, if there has been one. And it has been held, both in England and in this country, that a landlord by acceptance from his tenant of rent accruing after a breach of the condition in the lease, with knowledge that the breach had been committed, waives the right to declare the lease forfeited on account of the breach.”
Guptill v. Macon Stone Supply Co.,
The lessor contends that the provisions of this lease, allowing the term to be extended each year “during the life of the lessor,” if permitted to stand would amount to a sale of her property and create in the lessee an estate for years, which the parties never intended. The effect of the lease is to grant to the lessee a term for the remainder of the life estate, absolute for the first year and optional with the lessee as to future continuance under the terms and conditions prescribed in the contract.
Walker v. Wadley,
The lessor testified that she had intended to lease the land to the lessee for five years only and that she did not understand that he was to have it during her life-estate. The language of the lease refutes this. The tenant testified that he discussed with the lessor the matter of leasing her land during the remainder of her life-estate and that she agreed to it, after which they went together to the office of an attorney (who represented both of them) and had it prepared and signed. Both of them admit that when the lease had been prepared the attorney read it to them together, after which it was signed.
Enumerations of error numbered 3, 9, 10, 11 and 12, all dealing with portions of the charge which appellant contends were erroneous, present no question for our decision inasmuch as there was no exception to these portions of the charge before verdict, as required by Code Ann. § 70-207 (a), nor do we find any of them to be harmful as a matter of law.
Enumeration of error numbered 6, dealing with a colloquy between court and counsel relative to the duty of a party to a contract to read it before signing and the consequence of his failure to do so shows no error requiring the grant of a new
*235
trial. There was no objection made by counsel at the time and no motion for a mistrial:
Armstrong v. State,
Enumeration of error number 7 relative to a question directed by the court to the defendant while on the stand and the answer of the witness as being a conclusion of the witness as to the sufficiency of his written notice presents no question for decision by this court. There was no objection to the question or the answer at the time, no motion to exclude the answer, and no motion for mistrial because of the question or answer.
Georgia Power Co. v. Manley,
It is contended by enumeration of error number 4 that it was error for the court to construe the contract and that this should have been submitted to the jury. We do not agree. Construction of written contracts, even if they are ambiguous, is a matter for the court and no jury question arises unless after application of applicable rules of construction the ambiguity remains.
Farm Supply Co. of Albany v. Cook,
All other enumerations of error are disposed of by the rulings made in the several divisions, of this opinion.
Judgment affirmed.
Notes
Cf.
Atkinson v. Orr,