312 Ky. 389 | Ky. Ct. App. | 1950
Affirming.
This is a forcible detainer action by Silas M. Deane against R. L. Mitchell and Hobart Hanberry. It was originally filed in the Daviess County Court and Mitchell and Hanberry having been found not guilty, the action was appealedgto the Circuit Court where the appellees were again found not guilty.
The appellant, Silas M. Deane, by written contract dated June 1, 1940, leased a store building located at 211 Allen Street in Owensboro, Kentucky, to Len Dawson for a rental of $80 a month. The lease was for a term of five years, and Dawson was given the option to renew or extend it for a further term of five years commencing at the expiration of the original five year term. The contract contained this provision: “* * * provided, however, that notice of the exercise of such option shall be given by the party of the second part to the party of the first part at least thirty (30) days before the expiration of the term of this lease, which notice must be in writing; and it is expressly agreed by and between the parties hereto that time is of the essence in the giving of said notice.”
The contract gave the lessee the further option to renew or extend the lease for a second additional term of five years commencing at the expiration of the first
Unless this notation is treated as notice to Deane that Dawson exercised his option to extend the original lease for a term of five years, no written notice was actually given. Beginning June 1, 1945, Dawson paid to Deane $130 each month as rental for the two buildings. On August 3, 1948, Dawson sold his business to appellees, and assigned his lease to them. Appellant then demanded possession of the two buildings, and upon appellees’ refusal to surrender possession brought this forcible detainer proceeding on August 28, 1948, on the theory that Dawson failed to give the thirty day written notice required by the contract of June 1, 1940, and thereby elected to hold under KBS 383.160 which reads in part: “If, by contract, a term or tenancy for a year or more is to expire on a certain day, the tenant shall abandon the premises on that day, unless by express contract he secures the right to remain longer. If without such contract the tenant shall hold over, he shall not thereby acquire any right to hold or remain on the premises for ninety days after said day, and possession may be recovered without demand or notice if proceedings are instituted within that time.”
On the trial of the case in the Circuit Court a jury was waived by agreement of the parties, and the case was submitted to the court on the law and the facts. In response to a motion to state separately in writing his findings of fact and conclusions of law, the Circuit Judge stated his findings of fact in part as follows: “* * * the plaintiff and the said Dawson added to their said written agreement of June 1, 1940, by addition thereto and by notation of an agreement placed thereon on April 30,
A careful reading of the record convinces us that the Circuit Court’s findings of fact and conclusions of law are correct, and the judgment is affirmed.