90 W. Va. 607 | W. Va. | 1922
Plaintiffs by this writ of error seels reversal of a judgment in favor of the defendant in an action of unlawful entry and detainer brought by them to recover the possession of a business house situate in the City of Beekley.
In the summer of 1914 A. A. Lilly was erecting a business building upon a lot owned by him in the City of Beekley. The defendant desired to secure this .building for the conduct of its business, and entered into negotiations with Mr. Lilly to that end. These negotiations resulted, on July 1, 1914, in Mr. Lilly preparing a lease of the premises to the .defendant for the term of ten years, at a rental of $150.00 per month, payable monthly. This lease was-duly executed by Mr; Lilly under seal and duly acknowledge by him, and sent to the defendant with the expectation upon his part that the defendant would also execute and acknowledge it. The term of the lease was to begin as soon as the building was completed which was then in course of erection, and which was expected to be ready for occupancy by the first of November following. The defendant did not execute the lease sent to it by Mr. Lilly, but desired, if possible, to secure a modification of one of the conditions contained in .it in regard to liability for explosives stored upon the premises. The lease as prepared and executed by Mr. Lilly made the defendant liable for any injuries to the building caused by explosions upon the premises, while the defendant desired to have its liability limited to injuries caused by explosives stored in excess of the amount allowed by law, or from its negligence. It had its counsel prepare a lease in identical
On the first of July, 1919, A. A. Lilly, by deed of that date, conveyed the property to George H. Spaulding, Fred Faulkner and John Faulkner, in which deed there is contained the following stipulation: ‘ ‘ This conveyance is' made subject to lease contract, bearing date the 1st day of July, 1914, made between the said A. A. Lilly and Raleigh Hardware Company, a corporation, reference to which contract is here made.” After Spaulding and his associates got the property from Lilly, the defendant continued to occupy it without its right to do so being questioned until Spaulding and his associates sold it to C. M. Lilly and W. L Smith, the plaintiffs in this suit, and conveyed the same to them on the 27th of July, 1920. Soon after the plaintiffs got their deed from Spaulding and others they notified the defendant that it had no lease entitling it to occupy the .premises, and that it must vacate or make some arrangements with them in re
The plaintiffs insist that the judgment cannot stand, for the reason that there never existed any binding and valid contract between A. A. Lilly and the defendant for the lease of the premises, and that the holding thereof by the defendant, and the payment of rent therefor by the month, simply made it a tenant from month to month; while the defendant contends that its occupancy of the premises under the circumstances showed a clear intention and determination upon its part to accept the lease of July 1, 1914, and that it has a right to rely upon the terms of that lease and to occupy the premises thereunder. The plaintiffs insist that the facts disclosed by the record show that the defendant never accepted the lease signed and acknowledged by Mr. Lilly dated the first day of July, 1914, but instead of accepting it prepared another form of lease making a change in one of the conditions which Mr. Lilly refused to accede to, and that there never was any agreement of the parties upon the terms of the lease. The defendant’s contention is that it did accept the lease first sent to it by Mr. Lilly, and that this acceptance upon its part is shown by the fact that it retained this lease at all times after the same had been signed and acknowledged and sent to it, and did not return it with the form of lease it sent to Mr. Lilly to be executed evidencing the change; that its purpose at all times was. to
It is insisted that because the lease executed by A. A. Lilly, dated the first day of July, 1914, contemplated execution upon the part of the defendant, and was never formally executed by it, it cannot be relied upon as a binding contract, and the cases of Herndon v. Meadows, 86 W. Va. 499; Hoon v. Hyman, 87 W. Va. 659; and Ely v. Philips, 89 W. Va. 580, are relied upon as supporting this contention. In the case of Herndon v. Meadows the contract sued upon was not executed by one of the lessees, it being a contract for the lease of a tract of land for mining purposes. No act had been done under the contract by any of the parties, and the opinion very distinctly states that if the parties had (Sntered upon the performance of the contract in accordance with its terms, notwithstanding it had not been signed by one of the parties, the results would likely have been very different. In the case of Hoon v. Hyman the contract was made by an agent, and provided on its face for approval by the principal, the owner of the property, which approval the prin-
The plaintiffs, however, insist that the lease of July 1, 1914, is not sufficient because it contains no words of grant,
Our conclusion is that the action of the circuit court in directing a verdict in favor of the defendant was entirely justified by the evidence, and the judgment complained of is affirmed.
Affirmed.