| Ark. | Jun 19, 1922
(after stating the facts). Generally speaking it may be said that lease contracts upon real estate must be definite in their terms in order to bind the parties, and that a general covenant to renew a lease is ' sufficiently certain because it imports a new lease like the old one upon the same terms and conditions. Nakdimen v. Atkinson Imp. Co., 149 Ark. 448" date_filed="1921-07-04" court="Ark." case_name="Nakdimen v. Atkinson Improvement Co.">149 Ark. 448, and Felder v. Hall Bros. Co., 151 Ark. 182" date_filed="1921-12-19" court="Ark." case_name="Felder v. Hall Bros.">151 Ark. 182, 235 S. W. 789.
That rule, however, has no application under the facts of the present case. In the case last cited the ■court quoted with approval the definition of the word “renew,” in Cunningham v. Pattee, 99 Mass. 248" date_filed="1868-03-15" court="Mass." case_name="Cunningham v. Pattee">99 Mass. 248. It was there said that it imports the giving of a new lease like the old one, with the same terms and stipulations and at the same rent, and with all the essential covenants.
It is manifest that the clause relied upon by the plaintiff as the foundation of his action is not a covenant to renew his original lease. The covenant in question is copied in our statement of facts, and only its substance need be repeated here. Michael had leased the west half of the lot to Keating and the east part thereof to Griffin. The term of each lease was to August 1, 1921. The lease to Keating provided that he should have the refusal of a lease on the entire, or any part of said lot, if he should pay or agree to pay the same price therefor as is now being paid therefor under the terms of said lease to Griffin.
This clause evidently contemplated that a new lease should be executed. This is so because Keating only had a lease on the west half of the lot, and the clause in question provided that .he should have a refusal of a lease on the entire or any part of the lot. This provision then was not for the renewal of the old lease, because it contemplated that additional property might be in the new lease and that new terms should be imposed. It will be noted that the provision is that Keating shall have the refusal of a lease of the entire, or any part of the lot, if he should pay the same price therefor as is now being paid under the terms of the lease to Griffin. The clause of the Griffin lease referred to is also copied in our statement .of facts. It will be observed that the provision in question in it shows that' Michael had reserved the west half of- the lot and that Griffin was to have the refusal of renting the whole of said lot on whatever figure the parties might agree upon. This is the provision that must govern as to the amount of rent in the lease contract sued on. The parties having adopted the terms of the lease between Michael and Griffin, must be governed thereby.
A covenant to renew upon such terms as may be agreed upon is void for uncertainty. Tracy v. Albany Exchange Co., 7 N. Y. (3 Selden) 472, 57 Am. Dec. 538 and eases cited. There is nothing in the contract to bring the case within the maxim that “a thing is certain which is capable of being certain”, as was the case in Nakdimen v. Atkinson Imp. Co., 149 Ark. 448. There the parties provided that a board of arbitrators should fix the rental value and by that means rendered the terms of the •contract certain. Here no provision was fixed in the contract except such rental value as the parties might agree upon. They might never agree, and so the case falls squarely ydthin the general rule announced above, and the contract is too uncertain and indefinite to be enforced.
Keating in the notice given demanded possession of- the entire lot, and thus evinced his intention to treat the agreement to give him a lease on the entire lot or any part thereof at his option as an entire contract and not a severable one. Therefore we need not consider the question of whether or not. he might have elected to have taken a new lease on that part of the lot occupied by Griffin because the rent was fixed thereon. Having elected to treat the contract as an entire one, he is bound thereby, and the court was right in not allowing him damages for the alleged breach of a contract which was too uncertain to be enforced.
There was practically no dispute between the parties as to the issue arising upon the cross-complaint. If the agreement to give a new lease to Keating was void because it was too uncertain to be capable of enforcement, Keating had no right to hold over after the termination of Ms lease, and was liable in damages to Michael on this account. The parties having agreed upon the amount that Michael should recover on his cross-complaint, no further discussion of tMs branch of the case is necessary.
It follows that the judgment must be affirmed.